SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC86407 PDF
REAUTHORIZATION OF THE U.S. DEPARTMENT OF JUSTICE: EXECUTIVE OFFICE FOR U.S. ATTORNEYS, CIVIL DIVISION, ENVIRONMENT AND NATURAL RESOURCES DIVISION, EXECUTIVE OFFICE FOR U.S. TRUSTEES, AND OFFICE OF THE SOLICITOR GENERAL
COMMERCIAL AND ADMINISTRATIVE LAW
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
APRIL 8, 2003
Serial No. 28
Page 2 PREV PAGE TOP OF DOC
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
JOHN R. CARTER, Texas
Page 3 PREV PAGE TOP OF DOCTOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
JOHN CONYERS, Jr., Michigan
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Commercial and Administrative Law
CHRIS CANNON, Utah Chairman
Page 4 PREV PAGE TOP OF DOCHOWARD COBLE, North Carolina
JEFF FLAKE, Arizona
JOHN R. CARTER, Texas
MARSHA BLACKBURN, Tennessee
STEVE CHABOT, Ohio
TOM FEENEY, Florida
MELVIN L. WATT, North Carolina
JERROLD NADLER, New York
TAMMY BALDWIN, Wisconsin
WILLIAM D. DELAHUNT, Massachusetts
ANTHONY D. WEINER, New York
RAYMOND V. SMIETANKA, Chief Counsel
SUSAN A. JENSEN, Counsel
DIANE K. TAYLOR, Counsel
JAMES DALEY, Full Committee Counsel
STEPHANIE MOORE, Minority Counsel
C O N T E N T S
APRIL 8, 2003
The Honorable Chris Cannon, a Representative in Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law
Page 5 PREV PAGE TOP OF DOC
The Honorable Thomas Sansonetti, Assistant Attorney General, Environment and Natural Resources Division
Mr. Stuart Schiffer, Deputy Assistant Attorney General, Civil Division
Mr. Guy Lewis, Director, Executive Office for United States Attorneys
Mr. Lawrence Friedman, Director, Executive Office for United States Trustees
Material Submitted for the Hearing Record
Prepared Statement from Theodore B. Olson, Solicitor General of the United States
Page 6 PREV PAGE TOP OF DOC
Additional Questions from Chairman Chris Cannon
Additional Questions and Responses Presented to the Honorable Thomas Sansonetti by Chairman Chris Cannon
Additional Questions and Responses Presented to Stuart Schiffer by Chairman Chris Cannon
Additional Questions and Responses Presented to Guy Lewis by Chairman Chris Cannon
Additional Questions and Responses Presented to Lawrence Friedman by Chairman Chris Cannon
REAUTHORIZATION OF THE U.S. DEPARTMENT OF JUSTICE: EXECUTIVE OFFICE FOR U.S. ATTORNEYS, CIVIL DIVISION, ENVIRONMENT AND NATURAL RESOURCES DIVISION, EXECUTIVE OFFICE FOR U.S. TRUSTEES, AND OFFICE OF THE SOLICITOR GENERAL
MONDAY, APRIL 8, 2003
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Page 7 PREV PAGE TOP OF DOCWashington, DC.
The Subcommittee met, pursuant to call, at 2:05 p.m., in Room 2141, Rayburn House Office Building, Hon. Chris Cannon [Chairman of the Subcommittee] presiding.
Mr. CANNON. The Subcommittee will come to order.
I would like to welcome the panel today.
I would also point out that we have a friend of mine, Eddie Radon Levy, who is a Congressman, I keep trying to say ''dipotado,'' in the Mexican House of Representatives today. Mr. Radon Levy is the Chairman of the Subcommittee of the Mexican House on Mexican Affairs Abroad. So we welcome Eddie with us today. He will be leaving I think at some point because he has got other meetings, but we encouraged him to come and enjoy at least part of this hearing.
I hope the hearing by the way will be enjoyable for everyone concerned.
This afternoon we will hear testimony from four distinguished representatives of the Department of Justice who will report on activities of their respective positions preparatory to consideration by the Committee on the Judiciary of legislation reauthorizing the Department.
Today's hearing will not only enable us to make recommendations to the Committee concerning the activities of these divisions, but it will also provide us with the basis and context for possible subsequent hearings and continuing oversight.
Page 8 PREV PAGE TOP OF DOC
The purpose of a reauthorization hearing is to provide an opportunity to examine the budget requests and policy priorities from the representatives of these components. Appropriate areas of inquiry include, for example, the Department's effectiveness in resource allocation and other budget efficiencies, as well consideration of how well these components have set and achieved their goals.
The Subcommittee's oversight responsibility with respect to the Department include five of the most active and important divisions: The Environmental and Natural Resources Division, the Civil Division, the Executive Office for the United States Attorneys, the Executive Office for the United States Trustees, and the Office of the Solicitor General.
The Environment and Natural Resources DivisionI will call that ENRD from now onfirst created in 1909 as the Public Lands Division, has seen its areas of responsibility expanded to include litigation concerning the protection, use, and development of the Nation's natural resources and public lands, wildlife protection, Indian rights and claims, cleanup of the Nation's hazardous waste sites, the acquisition of prior property for Federal use, and the defense of environmental challenges to Government programs and activities. It is in effect the largest environmental law firm in the country.
The Civil Division is one of DOJ's six litigating divisions. It represents the United States, its departments and the agencies, Members of Congressso we want to treat you guys well, by the waycabinet offices and other Federal employees. It brings suit to collect money owed the United States by delinquent debtors and recovers sums lost to the Government through waste, fraud, and corruption. Finally, it enforces Federal consumer protection laws, immigration laws and policies, and the regulatory integrity of Federal programs.
Page 9 PREV PAGE TOP OF DOC
The Executive Office for the United States Attorneys provides support and coordination to the 94 United States Attorneys throughout the country in the following areas: General executive assistance and direction, policy development, and administrative management direction and oversight. It supervises the legal education of DOJ personnel through such units as the Attorney General's Advocacy Institute and is entrusted with the evaluation and improvement of U.S. Attorney's performance.
The Executive Office for the United States Trustees is responsible for overseeing the administration of bankruptcy cases and the integrity of the bankruptcy system. It appoints and supervises private trustees who administer chapter 7, 12, and 13 bankruptcy estates, and it enforces the requirements of the bankruptcy code to prevent fraud and abuse.
The Office of Solicitor General supervises and conducts Government litigation in the United States Supreme Court. It is involved in about two-thirds of all the cases that the Supreme Court decides on the merits each year. The Solicitor General reviews all cases decided adversely to the Government in the lower courts to determine whether they should be appealed and, if so, which position should be taken.
The Subcommittee has chosen to accept written testimony from the Office of Solicitor General as its budget request is the smallest and does not represent a significant increase. So we may look at or hold a hearing in the future on the Office of Solicitor General.
I might note that we were just handed a report which we have not had a chance to evaluate much, but the conclusions appear to be a little bit critical of the program and its effort to detect fraud and abuse. And let me just give you a quote from that:
Page 10 PREV PAGE TOP OF DOC
The UST Program does not have an ongoing systematic process to identify vulnerabilities in the bankruptcy system, and it has not established uniform internal controls to detect common high-risk frauds such as a debtor's failure to disclose all assets. In fact, the management controls in place did not address most of the fraud indicators identified by the UST Manual, and instead focuses primarily on fraud that might be committed by trustees and their employees rather than by debtors.
In addition, the report concludes that, as a result, the FBI's estimated 10 percent of bankruptcy cases that involve fraud may not be discovered, and the UST Program's mission to preserve the integrity of the bankruptcy system may not be accomplished as effectively as it should.
I also note that the report contains a fairly extensive response from Mr. Friedman on behalf of the program.
Given the fact that we have not had sufficient time to study the report, its conclusions, and the program's response, I would suggest that we follow up either in the form of written questions or further hearing if appropriate under the circumstances.
Just a couple of points here on how we will proceed in the hearing. We will take testimony from our four representatives from the Justice Department today.
You will note that we have a lighting system, which I think works now. It looks like we have got this thing working. A little problem there. You will note that it starts with a green light. After 4 minutes it turns to a yellow, and then it turns to a red light. It is my habit to tap the gavel at 5 minutes. We would appreciate it if you would finish up your thought. We don't want to cut people off in their thinking, but I find that it works much better if everybody knows thatmembers of this panel included on this side of the daisthat 5 minutes is 5 minutes. So if you could wrap it by the time we get there, I will appreciate that, and I will try to be consistent in my tapping. If you are really boring and I lose track, I will get nudged or something.
Page 11 PREV PAGE TOP OF DOC
We look forward to hearing from representatives of these divisions today. Mr. Watt was going to join us. We may allow him to make an opening statement when he comes in or after the panel.
Does anyone on the panel wish to submit an opening statement for the record? Or, worse yet, take 5 minutes? Thank you. Good guys on this side of the Committee. We appreciate that.
It is my pleasure to welcome representatives from the Department of Justice who are with us today to testify regarding the subject matter of today's hearing.
I will hear first from Thomas Sansonetti, who is the Assistant Attorney General in charge of the Environment and Natural Resources Division at the Department of Justice. Mr. Sansonetti served as the Solicitor for the Department of Interior from 1990 to 1993, where he was the primary legal advisor to Secretary Manuel Lujan, Jr., and the six Assistant Secretaries on all legal matters confronting the Department.
During his tenure, Mr. Sansonetti signed the $1.1 billion Exxon Valdez oil spill settlement after serving as one of the six Federal negotiators, and was appointed counsel to the Endangered Species Committee for the Spotted Owl hearings in Oregon.
He also served at the Interior Department as Associate Solicitor on Energy and Natural Resource from 1987 to 1989, and we just barely missed each other. I left the Department as an Associate Solicitor in 1987, but I followed your career, Mr. Sansonetti, and appreciate it.
Page 12 PREV PAGE TOP OF DOC
By the way, he was the Administrative Assistant and Legislative Director for then Congressman Craig Thomas during the 101st Congress. President George W. Bush also appointed him to chair the Presidential Advisory Commission on Western Water Resources.
Mr. Sansonetti received both a BA and an MBA from the University of Virginia and received a law degree from Washington Lee University.
I welcome Mr. Sansonetti.
And I will go ahead and introduce the other panelists, and then we will just go through the panel, if you don't mind.
Next we have Mr. Stuart Schiffer in the Department or who is the Deputy Assistant Attorney General in the Civil Division of the Stateor the Department of Justice.
Since 1978, Mr. Schiffer has served as the Senior Career Official in the Civil Division, Justice's largest litigating division. He is responsible for management of the Division's 280 attorneys in the Commercial Litigation Branch.
On numerous cases he has served as the Division's Acting Assistant Attorney General, most recently in the first 8 months of the current Administration.
He is a charter member of the Senior Executive Service, which is I think is an enormous honor, and has four times received Presidential Rank Awards, the highest awards given to the members of the Senior Executive Service. Mr. Schiffer received both his undergraduate and law degrees from the University of Illinois.
Page 13 PREV PAGE TOP OF DOC
Mr. Guy Lewis is Director of the Executive Committee or the Executive Office for United States Attorneys in the Department of Justice.
Mr. Lewis is the former United States Attorney for the Southern District of Florida, where he has been an Assistant since 1988, prior to being appointed as the United States Attorney in 2000.
Mr. Lewis received his undergraduate degree from the University of Tennessee and his law degree from the University of Memphis.
And Mr. Lawrence Friedman is Director of the Executive Office of the United States Trustees at the Department of Justice.
Prior to joining the Department of Justice, Mr. Friedman was a partner in the Southfield law firm of Friedman & Kohut. He was appointed to the panel of Chapter 7 Trustees for the Eastern District of Michigan in 1990, and also served as a Chapter 11 Trustee when so appointed and managed to administer more than 10,000 bankruptcy cases as a trustee.
Mr. Friedman received his undergraduate degree from Hillsdale College and his law degree from Thomas M. Cooley Law School.
We thank you for coming back to join us, Mr. Friedman, and we thank you all for coming to today's hearing.
Page 14 PREV PAGE TOP OF DOC And we will now turn the time over to Mr. Sansonetti for 5 minutes, please.
STATEMENT OF HONORABLE THOMAS SANSONETTI, ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION
Mr. SANSONETTI. Thank you, Chairman Cannon, and Members of the Subcommittee.
I am pleased to be here today, and welcome this opportunity to tell you about the Environment and Natural Resources Division. I will summarize the Division's work which is essential to the environmental and natural resource protection in this country, and then discuss the resources that the Administration is requesting for the Division for the fiscal year 2004.
If Congress approves funding for our proposed Hazardous Materials Transportation Initiative, which promotes Homeland Security, and our Tribal Trust Fund Litigation Initiative, which provides necessary resources to defend multi-billion-dollar claims against the public fisc, then the Division will receive the first real increase in its budget in 10 years.
The Division's mission is to enforce civil and criminal environmental laws that protect the health and environment of our citizens, and it defends suits challenging environmental and conservation laws, programs, and activities.
Page 15 PREV PAGE TOP OF DOC
We also represent the United States in matters concerning Indian rights and claims in the acquisition of Federal property. We have approximately 400 lawyers handling over 10,000 active cases, and we represent virtually every Federal agency with cases in every judicial district in the United States.
Our principle clients include the EPA and the Departments of Interior, Defense, and Agriculture and will soon include the Department of Homeland Security.
Many of our cases involve defensive litigation regarding alleged violations by the United States of the environmental laws, for example, in connection with the Federal highway construction or airport expansion.
Another significant portion of our docket consists of nondiscretionary imminent-domain litigation involving the acquisition of land for important national projects when our defensive and imminent domain litigation is considered together.
In cases funded from the General Legal Activities Appropriation, over 60 percent of our attorneys' time is spent on nondiscretionary cases. This fact has important resource implications, as we cannot always anticipate our future workload.
Nevertheless, we are committed to ensuring that American taxpayers are getting their monies' worth. And despite budget constraints and declining resources beginning in the 1990's, we have achieved significant cost-effective results.
Page 16 PREV PAGE TOP OF DOC We have obtained more than $7.9 billion dollars in fiscal years 2001 and 2002 in environmental cleanup and compliance commitments, two of our best years ever.
We have secured civil penalties and criminal fines for the U.S. Treasury that exceed the Division's GLA budget.
We have obtained benefits for human health in the environment that provide an impressive return on the taxpayers' dollar.
We have also protected the taxpayer from invalid or overbroad monetary claims sometimes for hundreds of millions of dollars.
To leverage our resources, we have forged partnerships with the U.S. Attorneys' Offices and State and local officials across the Nation. For example, we recently joined the National Association of Attorneys General in announcing the release of our guidelines for joint State, Federal, civil, environmental enforcement litigation.
We approach our work with the spirit of teamwork, cooperation, and Federalism that is the hallmark of effective environmental protection. And my written testimony provides several examples that illustrate the success of this approach.
Now, for fiscal year 2004, the President has requested $81.25 million to the Division within the Justice Department's GLA appropriation. Most of the increase for the fiscal year 2003 appropriation is for mandatory adjustments and allowances, but we are also requesting $4.188 million for two initiatives: The Hazardous Materials Transportation Initiative, and the Tribal Trust Fund Litigation Initiative.
Page 17 PREV PAGE TOP OF DOC
Funding for both initiatives is critical, and if money is provided, again, this would be the first real increase the Division's budget has seen in over a decade.
The Hazardous Materials Transportation Initiative will help protect America against the threat of terrorism by helping to prevent, disrupt, and defeat terrorist operations before they occur, and by vigorously prosecuting those who have committed or intend to commit terrorist attacks on the United States.
Experts who have considered the possible terrorist targets in the wake of September 11th attacks have identified Nation's Hazardous Material Transportation and Handling System as a vulnerable area.
The Tribal Trust Litigation Initiative is essential for the Government to effectively defend itself in 22 lawsuits brought by various Indian tribes alleging that the United States has mismanaged tribal assets and failed to provide an accounting of the money collected, managed, and disbursed by the United States of the behalf of the tribes.
Some of these cases seek an order requiring the United States perform a multi-million dollar, multi-year accounting and others seek a money judgment for the losses the tribes claim they have suffered.
In these cases filed so far, the tribes are claiming that they are owed more than $3 billion, and 200 to 300 other tribes may be preparing claims for similar amounts.
Page 18 PREV PAGE TOP OF DOC These Tribal Trust cases are similar to the huge and controversial Cobell versus Norton lawsuit, a class-action on behalf of 300,000 individual Indians. And to avoid another situation similar to Cobell, it is critical the Department of Justice establish a team dedicated to litigating these cases.
I would be happy to answer any questions that the Committee may have regarding the Division and its work.
Mr. CANNON. Thank you, Mr. Sansonetti.
[The prepared statement of Mr. Sansonetti follows:]
PREPARED STATEMENT OF THOMAS L. SANSONETTI
Chairman Cannon, Congressman Watt, and Members of the Subcommittee, I am pleased to be here today, along with my colleagues from the Department of Justice. I welcome this opportunity to discuss the Environment and Natural Resources Division, one of the principal litigating Divisions within the Department of Justice, and to answer any questions that the Subcommittee may have about the Division.
In my testimony today, I will first summarize the Division's work and provide an outline of the scope of our responsibilities. Our work is essential to the implementation of Congressional programs to protect the nation's environment and its natural resources, and to defend federal agencies sued by others. We have a long and distinguished history, and the Division's attorneys have built a record that demonstrates their commitment to legal excellence. In the second part of my testimony, I will discuss the resources that the Administration is requesting for the Division as part of its fiscal year 2004 budget. In particular, I will focus on the monies we are requesting for two ENRD initiativesthe Hazardous Materials Transportation Initiative, which will promote homeland security, and the Tribal Trust Fund Litigation Initiative, which will provide resources to defend multi-billion claims against the public fisc. If Congress decides to approve funding for these two important initiatives, it would constitute the first real increase that the Division's budget has seen in the last decade.
Page 19 PREV PAGE TOP OF DOC
OVERVIEW OF THE ENVIRONMENT AND NATURAL RESOURCES DIVISION
The Environment and Natural Resources Division's mission is to enforce civil and criminal environmental laws and programs to protect the health and environment of United States citizens, and to defend suits challenging environmental and conservation laws, programs and activities. We represent the United States in matters concerning the protection, use and development of the Nation's natural resources and public lands, wildlife protection, Indian rights and claims, and the acquisition of federal property. We represent virtually every federal agency in over 10,000 active cases in every judicial district in the nation utilizing the efforts of approximately 400 lawyers at the present time. Our principal clients include the U.S. Environmental Protection Agency, and the Departments of, Agriculture, Commerce, Defense, Energy, the Interior, and Transportation. We will soon be responsible for a portion of the new Department of Homeland Security cases as well.
Many of our cases involve defensive litigation in which the United States is being sued for alleged violations of the environmental laws, for example in connection with federal highway construction, airport expansion, or military training. 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.
In addition to our defensive work, another significant portion of our docket consists of non-discretionary eminent domain litigation. This work, undertaken pursuant to Congressional direction or authority, involves the acquisition of land for important national projects such as the construction of federal courthouses and the construction or expansion of border stations for the Immigration and Naturalization Service. When our defensive and eminent domain litigation is considered together, in cases funded from the General Legal Activities (GLA) appropriation over 60 percent of our attorney time is spent on non-discretionary cases.
Page 20 PREV PAGE TOP OF DOC
The Division is committed to ensuring that American taxpayers are getting their money's worth. Despite budget constraints and declining resources beginning in the 1990's, we have achieved significant, cost-effective results for the public. Conserving the Superfund to ensure prompt cleanup of hazardous waste sites is a top priority for the Division, and FY 2001 and 2002 were the two best consecutive years on record for Superfund cost recovery, Superfund injunctive relief, and natural resource damage recovery. In fact, when court-ordered injunctive relief for Superfund, the Clean Air Act, Clean Water Act, and hazardous waste enforcement laws is combined, we have obtained more than $7.9 billion in cleanup and compliance commitments, two of our best years ever. We have secured civil penalties and criminal fines for the U.S. Treasury that exceed the Division's GLA budget, and 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.
To leverage our resources and enhance our effectiveness, we have forged partnerships with U.S. Attorneys' Offices and state Attorneys General and other state and local officials across the nation. 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. In addition, just two weeks ago, in cooperation with the National Association of Attorneys General (NAAG) and EPA, we announced the release of our ''Guidelines for Joint State/Federal Civil Environmental Enforcement Litigation,'' which will assist states and the federal government in the conduct of joint civil environment enforcement litigation. In these ways and many others, we approach our work with the spirit of teamwork, cooperation, and federalism that is the hallmark of effective environmental protection. I would like to take a moment to discuss some cases from my tenure as Assistant Attorney General that illustrate the success of this approach.
Page 21 PREV PAGE TOP OF DOC
Fraudulent testing of the integrity of underground storage tanks is a major problem. Tests that indicate that a tank is sound when in fact it is not can result in major environmental harm and property damage, and the Division is committed to rooting out and prosecuting fraud in this area. In United States v. Tanknology, which involved fraudulent testing of tanks in Arizona, Florida, and Texas, among other states, we worked with the EPA Criminal Investigation Division, FBI, the Postal Service Office of the Inspector General, Defense Criminal Investigative Service, Army Criminal Investigation Division, Air Force Office of Special Investigations, Navy Criminal Investigative Service, NASA, and personnel from the Texas Natural Resources and Conservation Commission and the Pennsylvania Department of Environmental Protection to obtain $1 million in criminal fines and another $1.29 million in restitution from Tanknology-NDE International, the largest UST testing company in the United States. In another such case last year, United States v. Adams, we worked with the North Carolina State Bureau of Investigation, South Carolina Department of Health and Environmental Control Office of Criminal Investigations, and U.S. EPA, to make sure that the person responsible for testing fraud in the Carolinas, Florida, Georgia, Tennessee, and Virginia, was sentenced to 27 months in prison and three years of supervisory release for conspiracy to commit mail fraud and related crimes. In addition to being a good example of federal-state cooperation, these cases illustrate that we are committed to leveling the playing field in our enforcement work and ensuring that bad actors don't get an unfair competitive advantage over good corporate citizens who invest in compliance and environmental management programs.
Another great example of cooperation came in United States v. Nuyen, where we successfully concluded the first-ever criminal prosecution under the federal Residential Lead-Based Paint Hazard Reduction Act in conjunction with the U.S. Attorney's Offices here in the District and in Maryland. This Act requires landlords to give tenants warnings about actual and possible lead hazards. Lead poisoning can impair a child's central nervous system, kidneys, and bone marrow and even cause coma, convulsions, and death, and is especially acute among low-income and minority children living in older housing. The defendant, a Maryland landlord, pleaded guilty to obstructing justice and making false statements to federal officials, as well as violating the Lead Hazard Reduction Act. This case is part of a larger initiative to protect our nation's children from the hazards of lead paint and includes civil settlements which will result in the cleanup of such hazards in more than 16,000 apartments in New York, Los Angeles, and Chicago.
Page 22 PREV PAGE TOP OF DOC
Also, earlier this year, we joined EPA and the state of Washington in announcing a civil settlement with Olympic Pipe Line Company and Shell Pipeline Company LP for environmental violations leading to a fatal pipeline rupture in Bellingham, Washington, which caused the deaths of two 10-year-old boys and an 18-year-old man. The companies will pay civil penalties of $15 million total, to be split equally between the federal government and the State, and will spend an estimated $77 million to conduct programs for state-of-the-art spill prevention work on thousands of miles of pipelines in states including Washington, Colorado, Kansas, Illinois, Indiana, Ohio, Oklahoma and Texas. The companies will also pay $21 million total in criminal fines. Promoting and maintaining plant and infrastructure security is of paramount concern, particularly in these uncertain times, and we hope that the measures imposed in this case will help prevent such a tragedy from ever happening again.
These are only a few of the Division's many cases, but they are representative of the high-quality, cost-effective work that the Division's staff performs every day on behalf of the American taxpayer. If you are interested in learning more about the Division's work, please visit our website at http://www.usdoj.gov/enrd/pressroom.html.
ENRD'S BUDGET REQUEST FOR FISCAL YEAR 2004
The Division receives its annual appropriation from the General Legal Activities (GLA) portion of the Justice Department's appropriation. For fiscal year 2004, the President has requested $81,205,000 for the Division within the Justice Department's GLA appropriation. Most of the increase over the FY 2003 appropriation is due to mandatory adjustments and allowances, including pay raises, other salary adjustments, and increases for GSA rent, which will allow the Division to maintain its current level of operations. However, as part of his proposed budget, the President is also requesting $4,188,000 for two ENRD initiativesthe Hazardous Materials Transportation Initiative and the Tribal Trust Fund Litigation Initiative. These initiatives, if funded, will, respectively, promote homeland security and enable the Division to effectively defend the United States against a wave of claims for billions of dollars. They would also constitute the first real increase that the Division's budget has seen in the last decade. For the reasons that I will now give, funding for both initiatives is critical.
Page 23 PREV PAGE TOP OF DOC
The Hazardous Materials Transportation Initiative will help the Department achieve its top strategic goal of protecting America against the threat of terrorism by helping to prevent, disrupt, and defeat terrorist operations before they occur, and by vigorously prosecuting those who have committed, or intend to commit terrorist attacks in the United States. Experts who have considered the issue of possible terrorist targets in the wake of the September 11th attacks have identified the nation's hazardous material (''HazMat'') transportation and handling system as a vulnerable area. Deaths and injuries could result from a terrorist with a fraudulent HazMat license commandeering a tractor trailer or a vessel laden with flammable or poisonous materials, as could an attack on a pipeline or other facility handling HazMat that does not have proper safety and security measures in place. The HazMat Initiative will concentrate on three tasks: 1) development of strategy and coordination with other federal, state and local agencies; 2) development of criminal prosecutions and referrals for civil enforcement actions; and 3) development and implementation of a training program to assist federal, state and local prosecutors and investigators in uncovering and prosecuting such illegal activity. These measures will effectively marshal and focus all available resources, create an immediate deterrent effect, and ensure long-term effectiveness through training of United States Attorneys and state enforcement offices around the country, and will give state and local law enforcement agencies a considerable boost in implementing counter-terrorist activities.
The Tribal Trust Fund Litigation Initiative is essential for the government to effectively defend itself in twenty-two current lawsuits brought by various Indian Tribes alleging that the U.S. has mismanaged tribal assets and failed to provide an ''accounting'' of the money collected, managed and disbursed by the U.S. on behalf of the Tribes. Some of these cases seek an order requiring the U.S. to perform a multi-million dollar, multi-year accounting, and others seek a money judgment for losses the Tribes claim they have suffered. In the twenty-two cases filed so far, the Tribes are claiming that they are owed more than $3 billionand 200 to 300 other Tribes may be preparing claims for similar amounts. These Tribal Trust cases are similar to the significant Cobell v. Norton lawsuit, a class action on behalf of 300,000 individual Indians. Both Cobell and the Tribal Trust cases concern the scope of the duty owed to Native Americans for the Indian land that the government has held in trust since the late 1800s and has been used, among other things, for grazing, lodging, and oil and gas exploration. Three Cabinet officials and two other Presidential appointees have been held in contempt in Cobell, in part for their alleged failure to obey orders to produce documents, and further contempt charges are still pending against 37 government attorneys and managers. To avoid allegations similar to those in Cobell v. Norton, it is critical that the Department of Justice establish a team dedicated to litigating these cases. Many of them involve millions of historical accounting documents spanning more than a century of economic activity, and the issues are legally and factually complex.
Page 24 PREV PAGE TOP OF DOC
This initiative will enable the Department of Justice to effectively defend the United States in the first wave of cases filed seeking recompense for Tribal Trust accounts, and maintain an adequate staffing level in our remaining non-discretionary caseload. Failure to provide sufficient resources for these cases could lead to additional allegations of contempt, substantial and unnecessary monetary awards at taxpayer expense, and a public loss of confidence in the federal government in general.
The work of the Environment and Natural Resources Division is both challenging and complex. It is vitally important to the implementation of Congressional programs and priorities regarding public health and the environment, to the protection of the public fisc, and to the advancement of the public interest generally. We have an exceptional record of assuring that polluters are made to comply with the law, that responsible private parties are made to cleanup Superfund sites rather than leaving the taxpayer on the hook, and that criminal defendants are punished appropriately. I am proud of the people in my Division, who consistently provide top-notch, cost-effective legal services to the American people and who dedicate their lives to assuring that the rule of law is met and complied with by all parties.
I would be happy to answer any questions you might have about the Division and its work.
Mr. CANNON. Mr. Schiffer.
Page 25 PREV PAGE TOP OF DOCSTATEMENT OF STUART SCHIFFER, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION
Mr. SCHIFFER. Thank you, Mr. Chairman, Members of the Subcommittee. I appreciate the opportunity to appear before you today to discuss the work of the Civil Division.
The size of our caseload and the variety of cases entrusted to us are such that it is somewhat impossible to describe in 5 minutes, so I will try to do it in a little bit less time than that.
Stripped to the barest essentials, our responsibilities can best be described as safeguarding and saving billions of dollars in taxpayer funds, recovering similarly impressive amounts for the Federal Treasury, and defending the policies and practices of the Executive Branch, and, as well, the decisions made by Congress in the form of the statutes passed by the Congress.
We, in the Civil Division, are not the initiators of Government policies, but instead, as is true of our colleagues in the U.S. Attorney's Offices, we are front-line lawyers who represent in court virtually every Government agency in the broadest conceivable array of cases.
We have only the most limited control of our caseload. Almost 90 percent of the cases are defensive; that is, they are suits brought against the Government and its officers.
Page 26 PREV PAGE TOP OF DOC
Even with respect to the affirmative portion of our caseload, the discretion or control that we might be thought to have is often illusory. For example, when the Food and Drug Administration or an agency similarly situated refers to us for injunctive relief, allegations that unsafe or unhealthy drugs are being manufactured and sold illegally, or that a warehouse is contaminated, we in fact have very little option but to proceed with the case.
I would also add that almost 40 percent of our attorneys are responsible for litigation in the so-called national courts, that is, courts that have nationwide jurisdiction. The Court of Federal Claims in Washington, the Court of Appeals for the Federal Circuit, and the New York-based Court of International Trade.
Many of the cases in these courts are among our most complex. And, of course, there are no U.S. Attorneys assigned to these courts with whom we can share the caseload.
The President's fiscal year 2004 budget request for the Division includes only the most modest increases to handle first our burgeoning immigration caseload and, second, $1 million for administration of the Radiation Exposure Compensation Act.
We too have been operating under a largely static budget with a rising workload, and I believe these are minimal increases needed for us to fulfill our responsibilities in these vital area.
I started by saying I really couldn't summarize the work of the Division in under 5 minutes, and so I think I will stop at this point simply by stating my heartfelt belief that the taxpayers get a huge return of investment in the work that the Civil Division does. And I look forward to answering your questions.
Page 27 PREV PAGE TOP OF DOC
Mr. CANNON. Thank you, Mr. Schiffer.
I can assure you that you will have that opportunity.
Mr. SCHIFFER. I will try to answer your questions.
Mr. CANNON. Mr. Lewis, before we recognize you, let me point out that we have Mr. Flake from Arizona, Mr. Feeney from Florida, who is also the Vice Chair of this Committee, and Mr. Chabot from Ohio has been in, and we expect Mr. Watt from North Carolina shortly.
[The prepared statement of Mr. Schiffer follows:]
PREPARED STATEMENT OF STUART E. SCHIFFER
Chairman Cannon, Congressman Watt, and Members of the Subcommittee:
I appreciate the opportunity to discuss the work of the Civil Division of the Department of Justice and our budget and resource needs for Fiscal Year 2004.
The Division represents the interests of the United States in a wide range of civil matters. Our cases encompass virtually every aspect of the Federal governmentfrom defending the constitutionality of Federal statutes to recovering money from those who have committed fraud in connection with government programs, to the administration of national compensation programs, to the representation of Federal agencies in a host of matters that arise as part and parcel of Government operationscontract disputes, allegations of negligence and discrimination, loan defaults, immigration matters, and much more. We have 729 dedicated public servants who serve as trial attorneys in the Division and 411 full and part time employees who provide essential paralegal, administrative, and clerical support.
Page 28 PREV PAGE TOP OF DOC
Over the last year and a half, the Civil Division has:
Recovered hundreds of millions of dollars lost through fraud against health care and defense programs;
Defended Congressional efforts to shield children from pornography on the Internet;
Protected the public fisc from billions of dollars in claims arising from the Government's commercial activities;
Developed the Employment Discrimination Task Forcea joint venture with the Civil Rights Division that has provided substantive guidance and training to the United States Attorneys Offices on this burgeoning area of complicated litigation.
The Civil Division has taken on the task of assisting in the development and administration of congressional programs, such as the September 11th Victim Compensation Fund; the Division has also continued its work with the Vaccine Injury Compensation Program, and the Radiation Exposure Compensation Act.
Further, in the months since the September 11th attacks, there has been a substantial increase in civil litigation challenging the Federal government's coordinated response to those attacks and the Administration's policies designed to prevent future acts of terrorism. The Civil Division currently has well over 60 pieces of litigation directly related to the September 11 attacks and the country's response to those attacks.
Page 29 PREV PAGE TOP OF DOC
Among the laws and policies of most prominent concern to the Administration, the Congress, and the public are those involving our nation's security. We take the Attorney General's charge seriouslyto prevent, disrupt, and dismantle future terrorist attacks by thinking outside the box, but never outside the Constitution. Here our role is especially critical, as Division attorneys defend challenges to the USA Patriot Act and the AntiTerrorism Act, lead efforts to freeze the assets of terrorist organizations and ensure that immigration hearings may proceed without risking harm to our Nation's counterterrorism strategy. Civil Division attorneys defend enforcement actions involving the detention and removal of suspected alien terrorists and defend our Commander-In-Chief in suits seeking to enjoin the country's military actions in Iraq.
While national security cases are paramount, they represent a small fraction of the over 29,000 cases and matters handled annually by the Civil Division. This vast and diverse workload is handled by our trial attorneys who spend their time on the front lines of litigationpreparing motions, taking depositions, negotiating settlements, conducting trials, and pursuing appeals.
PROTECTING THE PUBLIC FISC
Our dockets are filled with cases that involve monetary claimsthe majority are claims against the Government and huge sums are at risk.
Page 30 PREV PAGE TOP OF DOC It is hardly possible to overstate the magnitude of these claims, considering that our responsibilities include: the 100+ Winstar suits in which some 400 financial institutions sought in the neighborhood of $30 billion for alleged losses that occurred in the wake of banking reforms enacted in the 1980s; the Cobell class actionperhaps the largest ever filed against the Government; and the Spent Nuclear Fuel cases where nuclear utilities allege a multi-billion dollar breach of contract against the Department of Energy for its failure to begin acceptance and disposal of spent nuclear fuel.
In these and thousands of other defensive monetary matters, our mission is to ensure that the will of Congress and the actions of the Executive Branch are vigorously and fairly defended, and that claims without merit are not paid from the public fisc. In fiscal year 2002, we defeated $17 billion in claims asserted against the United States.
In any given year about 15 to 20 percent of our cases involve affirmative litigation to enforce important Government regulations and policies, and to recover money owed the Government resulting from commercial transactions, bankruptcy proceedings, and fraud.
Cases in point include the Schering-Plough consent decree that required the company to pay $500 million for its failure to comply with FDA regulations.
In fiscal year 2002, we recovered for the United States an additional $1.9 billion and set precedents that will deter future practices designed to bilk the public coffers and the American people.
Page 31 PREV PAGE TOP OF DOC
In 2000, the Civil Division had just over 20,000 cases and matters, and a staff of 725 trial attorneys. In just three years our pending caseload grew 45 percent to just over 29,000, while the number of trial attorneys has held almost steady at 729.
During this time we witnessed significant growth in appellate cases and mattersdriven largely by the steep rise in challenges to immigration enforcement actions. Cases in National courts and foreign courts continued to account for a very significant portion of our workloadsome 44 percent. In contrast, the number of trial cases assigned to district courts declined both numerically and as a proportion of our total workload. Most notably, the sharpest increases are attributable to our expanding responsibilities for administering compensation programs.
ALTERNATIVES TO LITIGATION
The Vaccine Injury Compensation Program was created in 1986 by the National Childhood Vaccine Injury Actto encourage childhood vaccination by providing a streamlined system for compensation in rare instances where an injury results. To date, nearly 1,800 people have been paid in excess of $1.4 billion. The Program's success is evident.
In FY 2002, claims filed under the Program increased more than four-folda rise largely attributable to claims alleging that a vaccine preservative, thimerosal, caused autism. As the Court of Federal Claims increases its staff of Special Masters, we expect further growth in vaccine-related work.
Page 32 PREV PAGE TOP OF DOC Congress has introduced several bills that could substantially increase the scope of the Vaccine Program. Most significantly, lawmakers and the Administration are examining how the United States can most fairly handle claims likely to emerge with the widescale issuance of smallpox vaccine.
To handle its vaccine caseload, the Division may spend up to $4,028,000, which is made available through a reimbursement from the National Childhood Vaccine Injury Trust Fund. The Division will continue to monitor the sufficiency of these resources.
Congress passed the Radiation Exposure Compensation Act (RECA) in 1990 to offer an apology and compensation to people who suffered disease or death as a result of the nation's nuclear weapons program during the Cold War era.
In July 2000, RECA Amendments were enacted. Among other things, new categories of beneficiaries were added, eligible diseases were increased, and the years and geographic areas covered were expanded.
The amendments resulted in over 3,800 new claims filed in FY 2001more than in the prior six years combined. Awards rose sharply too, from an average of about $20 million a year to over $172 million in 2002 alone. Trust Fund resources were provided to pay claims via the FY 2002 National Defense Authorization Act. Similarly, for FY 2004, the President's budget requests an increase of $1,000,000 above base funding of $1,996,000 to administer the expanded program.
As backlogs mount, Congress and the Administration must take steps to ensure that limitations on administrative support do not hinder our ability to make timely payments from the recently replenished Trust Fund. To this end, the Omnibus Appropriations Act merged the RECA administration budget with the General Legal Activities (GLA) appropriation, making it possible to reprogram resources to assist in handling the onslaught of RECA claims.
Page 33 PREV PAGE TOP OF DOC
However, the need to absorb pay hikes and meet resource requirements placed by our emerging counterterrorism caseload, limits our reprogramming flexibility. The requested increase will enable us to acquire contractor support to help analyze claims and work to keep payments apace with the volume of sick and dying claimants found to be eligible.
Simultaneously, the Division will monitor closely the adequacy of the caps established by the National Defense Authorization Act to ensure sufficient funds continue to be available for all eligible claimants.
The most recent addition to the Division's responsibility for compensation programs is the September 11th Victim Compensation Fund of 2001. The Air Transportation Safety and System Stabilization Act (P.L. 10742) created the Program to pay compensation to families of deceased individuals and to those physically injured as a result of the terrorist attacks that day.
On December 21, 2001, the program's regulations were issued. Soon after, secure and private Claims Assistance Sites were opened in Manhattan and Long Island, NY; Jersey City and Edison, NJ; Arlington, VA; Boston, MA; and Stamford, CT. More than 1,800 potential claimants received assistance at these sites.
Under the leadership of Special Master Kenneth Feinberg, the Program is processing over 1,300 claims. It has paid over $200 million to claimants.
The amounts approved for deceased victims ranged from $250,000 to $6.0 million. Awards approved for physically injured (but not deceased) victims ranged from $500 to $6.8 million.
Page 34 PREV PAGE TOP OF DOC
The law requires that all claims be filed by December 21, 2003. Accordingly, we expect to receive the lion's share of the 4,000 anticipated claims during the next nine months, as claimants complete and submit their applications.
To address the surge of work expected through the remaining months of the Program, the Department is expanding the contractor staff which assists the Special Master in reviewing the claims. In addition, several Federal agencies are providing Administrative Law Judges to conduct hearings for claimants who challenge preliminary compensation determinations.
For FY 2004, the President's budget seeks a total of $26 million for administration of the Victim Compensation program.
Because the enacting legislation provided a permanent and indefinite appropriation for making compensation payments, there will be sufficient funds to pay an estimated $5 billion in approved claims over the life of the program.
This Program has had to come to grips with some of the most sensitive issues of our time.
The Office of Immigration Litigation (OIL) defends the Government's immigration laws and policies, and handles challenges to immigration enforcement actions. At no time in history has this mission been so important.
Page 35 PREV PAGE TOP OF DOC
Immigration attorneys defend the removal of criminal aliens and challenges to critical features of the nation's counterterrorism strategy. Attorneys defend landmark cases dealing with media access to immigration hearings of individuals who have been detained in connection with the post-September 11th investigation.
Immigration has been the fastest growing component of the Civil Division's workload. Court challenges handled by the Civil Division have more than doubled in the past five years.
Accounting for this growth is the dramatic rise in the number of court cases seeking to overturn decisions regarding alien removal and detention, including those involving individuals with links to terrorist organizations.
Our cases begin when cases brought by the immigration component of the Department of Homeland Security are challenged before the Board of Immigration Appeals (BIA). Aliens appealing BIA decisions take their cases to Federal courts.
Appeals decided by the BIA have substantially increased as a result of initiatives by the Attorney General to streamline the BIA's procedures
The impact on OIL caseload has been dramatic: Between 1999 and 2002 a 40 percent increase brought the total workload to a record 7,000 cases.
These attorneys are the last line of defense in upholding immigration enforcement decisions. Any attempt to strengthen immigration enforcement must ensure that such efforts are not undermined by inadequate defense when actions are challenged in court. Such neglect would necessarily weaken National efforts to protect homeland security through an effective immigration enforcement program.
Page 36 PREV PAGE TOP OF DOC
The President therefore requests in his FY 2004 budget a program increase of 30 positions (26 attorneys and four support staff), 22 FTE, and $3,500,000 for immigration litigation.
By concentrating on the Civil Division's top priorities, this testimony provides little elaboration on the thousands of cases and matters that form the traditional core of our work.
The Civil Division has a longstanding commitment to maximizing the effectiveness of scarce Government resources. It is with pride that I can report that performance targets across the board were met or exceeded in FY 2002as we succeeded in recovering substantial funds owed to the Government, defeating unmeritorious claims and prevailing in the vast majority of cases involving challenges to the programs of some 200 agencies that are our clients.
PRESIDENT'S BUDGET REQUEST
The President's FY 2004 request seeks 1,084 positions, 1,097 FTE and $235,553,000. Included in this request are the base resources required to maintain superior legal representation services that have yielded such tremendous success.
An increase of $1 million is needed to ensure timely and accurate payments for people injured as a result of radiation exposure during the Cold War era; and, 30 new immigration positions and a $3.5 million increase are required to protect homeland security through effective immigration enforcement.
Page 37 PREV PAGE TOP OF DOC
Finally, as mentioned earlier, the President's budget includes $26 million for administration of the September 11 Victim Compensation program. This proposed decrease reflects the winding down of the program.
Mr. CANNON. Mr. Lewis, you are recognized for 5 minutes.
STATEMENT OF GUY LEWIS, DIRECTOR, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS
Mr. LEWIS. Thank you, Mr. Chairman. Members of the Subcommittee.
I, too, am pleased to appear before you today with my colleagues from the Department of Justice. I am also pleased, Mr. Chairman, that my good friend Paul Warner, United States Attorney for the District of Utah is here with us as well.
It is my honor to be here representing the outstanding women and men of the 94 United States Attorneys' Offices, and please allow me to sincerely thank you, Mr. Chairman, and this Committee and your staffs for your continued support of the United States Attorneys' mission.
I would now like to briefly outline our 2004 budget request, and highlight accomplishments of the U.S. Attorneys this past year and then some of our management goals for the future.
Page 38 PREV PAGE TOP OF DOC
To carry out our mission in fiscal year 2004, we are requesting a budget of just over $1.5 billion to support about 10,200 positions. We are seeking a little over $18 million to support an increase in 233 positions. Now, in formulating our requests, the President, the Attorney General, the Deputy Attorney General asks that we invest in programs that are critical to the Department's highest priorities.
Our fiscal year 2004 budget request complies with this directive, and includes a number of savings to help us fund the enhancements that we seek.
The request before you recognizes that the prevention of terrorism and investigation and prosecution of terrorist acts are the most important responsibilities of every United States Attorney. The convictions of John Walker Lindh, the Shoe Bomber, and a number of terrorist financiers, including several major cases in Mr. Warner's district, are just a few examples of the important work being done by U.S. Attorneys in our fight against terrorism.
Our fiscal year 2004 request also recognizes that, in addition to the pressing priority of terrorism, there are still other crime problems that we must address. One example is corporate fraud. Since the President created the Corporate Fraud Task Force in July of 2002, the U.S. Attorneys have obtained over 50 convictions of corporate wrongdoers as a result of convictions in WorldCom, ImClone, Homestore, Allfirst, and many, many others, the U.S. Attorneys have helped restore the public's confidence in the integrity of our financial markets.
Now, as additional prosecutors have been allocated to fight terrorism, gun violence, corporate fraud, a need has developed for additional support staff assistance. As a result, we are asking for 85 support staff positions, which, in reality, is a little less than one per office nationwide.
Page 39 PREV PAGE TOP OF DOC
We are also asking, Mr. Chairman, for some additional help on the civil side of the house. The Civil Division in the U.S. Attorneys Office handled over 190,000 cases this past fiscal year, and collected over 100 percent of their annual budgets, a fact that we are very proud of. Our request for 60 new civil defensive positions will ensure that our offices can continue to defend the U.S. in civil actions.
Now, we recognize that stewardship of appropriated funds is a serious responsibility, and our commitment to sound management at the Department of Justice runs deep. We expect to achieve substantial savings by supporting department-wide efforts to evaluate programs and operations, and we are committed to identifying the savings necessary to help us fund the new resources we seek.
Now, with regard to sound management. At the request of Larry Thompson, the Deputy Attorney General, each U.S. Attorney has reported on the state of management in his or her district. These performance reports include accomplishments in national and district priority areas and address strategic planning in their district.
In conclusion, Mr. Chairman, the men and women of the U.S. Attorneys' Offices and the Executive Office for United States Attorneys are dedicated to fighting terrorism, protecting our neighborhoods and schools from gun violence and drug-related crimes, upholding civil rights, and prosecuting those who perpetrate corporate fraud. We believe that our fiscal year 2004 budget request is a responsible, prudent request that will allow us to maintain the important programs designed to carry out the Department's strategic plan.
Page 40 PREV PAGE TOP OF DOC Again, we truly appreciate this Committee's continued support. And I would be glad to answer any questions you may have. And I would request that my prepared long statement be included in the record.
Mr. CANNON. Without objection.
Thank you, Mr. Lewis. I thank you for introducing Mr. Warner. Paul Warner is my U.S. Attorney and has done a great job. We appreciate him in Utah and we appreciate your being here today.
[The prepared statement of Mr. Lewis follows:]
PREPARED STATEMENT OF GUY A. LEWIS
Mr. Chairman, Congressman Watt, Members of the Subcommittee, I am pleased to appear before you today with my colleagues, Thomas L. Sansonetti, Assistant Attorney General of the Environment and Natural Resources Division; Robert D. McCallum, Jr., Assistant Attorney General for the Civil Division; and Lawrence A. Friedman, Director of the Executive Office for U.S. Trustees. I am also pleased that Paul Warner, the U.S. Attorney for the District of Utah and, until recently, the Chair of the Attorney General's Advisory Committee is here. The United States Attorneys were critical in developing the budget request that is before you today.
It is an honor to be here representing the women and men of the 94 United States Attorneys' offices nationwide and I thank you on their behalf for your continuing support of their efforts. 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 (USAOs), 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, with the Attorney General's Advisory Committee, on a host of legal and policy issues presented within the Department.
Page 41 PREV PAGE TOP OF DOC
The United States Attorney serves as both the chief law enforcement officer and the chief federal litigator in his or her district. The United States Attorneys and their staffs work closely with the six litigating divisions of the Department of Justice. The work of the United States Attorneys is among the most fundamental of any in the government: criminal law enforcement; affirmative civil litigation; and defending the government when it is being sued.
The top priority of the USAOs is the investigation and prosecution of terrorism. The USAOs are aggressively pursuing criminal investigations throughout the United States, preventing, and prosecuting possible terrorist-related activity aimed at the United States. Some of the important terrorism prosecutions were:
In the Northern District of Illinois, the head of the Benevolence International Foundation, pleaded guilty to defrauding his investors by failing to disclose that their charitable contributions were being forwarded to finance violent jihad activities.
John Walker Lindh pleaded guilty in the Eastern District of Virginia and was sentenced to 20 years imprisonment for aiding the Taliban.
In the District of Massachusetts the alleged ''shoe bomber'' was sentenced to life in prison and ordered to pay a $2 million fine for terrorist acts, including his attempt to ignite explosive bombs located in his footwear while a passenger on an American Airlines flight. The defendant, who received Al-Qaeda training in Afghanistan, pleaded guilty on October 4, 2002.
A Salt Lake City resident pleaded guilty in the District of Utah to operating an unlicenced money transmitting business, admitting that he and his associates made a series of bank transfers from Salt Lake City banks to an account at Arab Bank in Amman, Jordan, controlled by his brother.
Page 42 PREV PAGE TOP OF DOC
We are also focusing on alien smugglers and disrupting alien smuggling rings. In the District of Columbia, a jury found one defendant guilty of illegally smuggling aliens from Iraq to the United States through Ecuador and Colombia. He is subject to deportation upon completion of his sentence.
In addition, we are prosecuting individuals for immigration fraud. In the District of Oregon, a defendant , who was suspected of affiliating with the Palestinian terrorist group Hamas, was sentenced to 30 months in prison on various firearms and immigration fraud charges and ordered to pay $41,000 in restitution. In addition, the court signed an order revoking the defendant's fraudulently obtained citizenship. Searches of the defendant's home and vehicle uncovered an assault rifle, $20,000 in cash, 1,000 rounds of ammunition, a handgun, and documentary evidence establishing multiple identities, frequent foreign travel, and various frauds. A calendar seized from his home had the date September 11, 2001, marked with a red circle. The defendant admitted having received weapons and explosives training at a guerilla camp in Lebanon prior to coming to the United States at the age of 19.
The United States Attorneys have shared information with more than 6,000 federal, state and locals agencies through the 93 Anti-Terrorism Task Forces (ATTFs). The ATTFs have used Chief Information Officers, Law Enforcement Coordinators, and Intelligence Research Specialists to facilitate law enforcement information sharing at meetings and joint training sessions, and through e-mail distribution groups and telephone ''trees''.
After the events of September 11, 2001, the prosecution of those who perpetrated threats or violence against individuals who were perceived to be of Middle-Eastern origin became a priority of the Department. In the Central District of California a member of the Jewish Defense League, pleaded guilty on February 4, 2003, for conspiring to manufacture and detonate bombs at a mosque in Culver City, California, and at the field office of United States Congressman Darrel Issa, an Arab-American. A defendant in the Western District of Washington, pleaded guilty for attempting, two days after the September 11, 2001, terrorist attacks, to set fire to cars in the parking lot of Seattle's Islamic Idriss Mosque. He then fired at worshipers exiting the mosque and fled. The defendant was sentenced to 78 months in prison.
Page 43 PREV PAGE TOP OF DOC
Another important prosecutorial focus is corporate fraud. On July 9, 2002, the President established by Executive Order the Corporate Fraud Task Force to direct the investigation and prosecution of significant cases of corporate fraud. In concert with the Department's Criminal Division, the United States Attorneys for the following districts are members of the Corporate Fraud Task Force: Southern District of New York, Eastern District of New York, Eastern District of Pennsylvania, Northern District of Illinois, Southern District of Texas, Central District of California, and Northern District of California.
In September 2002, the Deputy Attorney General convened all United States Attorneys and representatives from the other agencies represented on the task force for a Corporate Fraud Conference in Washington, D.C. Subsequently, EOUSA designed and conducted specialized training to better equip prosecutors to combat corporate fraud.
Since the inception of the Task Force, the United States Attorneys have obtained over 50 convictions. Set forth below is a small sampling of some of the more significant corporate fraud prosecutions undertaken by the United States Attorneys' Offices since the inception of the Corporate Fraud Task Force:
In the Southern District of New York, the former WorldCom Comptroller and three former accounting employees pleaded guilty to securities fraud violations in connection with their participation in a scheme to defraud investors and the public regarding the financial condition and operating performance of the company. Also in the Southern District of New York, the Chief Executive Officer of ImClone Systems, Inc., pleaded guilty to securities fraud, conspiracy, obstruction of justice, perjury, and bank fraud.
Page 44 PREV PAGE TOP OF DOC
In the Central District of California, three Homestore.Com, Inc. executives pleaded guilty to fraudulently inflating the company's revenues by over $30 million through a series of transactions known as ''round-tripping'' in which the online real estate listing giant bought and sold services solely to increase revenue.
In the Northern District of California, a jury convicted the chief financial officer of Media Vision, Inc., a Silicon Valley technology company, of a scheme to inflate the company's earnings and income and to mislead company stockholders. This conviction followed guilty pleas by four other company officials: the Chief Executive Officer, Chief Operating Officer, the Sales Vice President and the Controller.
In the District of Maryland, a former Allfirst Bank currency trader pleaded guilty to bank fraud after being charged with making false entries into bank records that caused the bank to lose more than $691 million.
The variety of significant cases handled by the USAOs in areas other than terrorism and corporate fraud is remarkable. A brief description of some of the more significant recent cases is provided below. These cases reflect our prosecution of criminal and civil offenses with the goal of reducing firearms-related violence, narcotics trafficking and protecting the American people from fraud.
Through Project Safe Neighborhoods and Project Sentry, the United States Attorneys partner with local and state law enforcement and prosecutors along with federal agencies to reduce gun violence by prosecuting violators to the fullest extent possible. Examples of two cases that were investigated and prosecuted under the Project Safe Neighborhoods initiative are:
Page 45 PREV PAGE TOP OF DOC
In the Middle District of Tennessee a defendant was sentenced as a career offender to 21 years and 10 months in prison after a jury convicted him on charges of being a felon in possession of a firearm and possession with intent to distribute cocaine. His past criminal offenses stretched from 19741997.
A defendant in the District of Nevada pleaded guilty to being a felon in possession of a firearm. While returning merchandise at a Wal-Mart, the defendant became confrontational and argumentative. While he was waiting in the store's security office for the police to arrive, a loaded Titan 25-caliber semi-automatic handgun dropped from his waistband onto the floor and was recovered by the store security officer. The defendant has three prior felony convictions for aggravated assaults in 1996 and 1993, and felony failure to appear in 1996.
To achieve the Department's strategic goal of enforcing federal criminal laws related to drug enforcement, the United States Attorneys' objectives are twofold. First, they seek to reduce the threat, trafficking, and related violence of illegal drugs by identifying, disrupting, and dismantling drug trafficking organizations. Second, they aim to break the cycle of drugs and violence by reducing the demand for illegal drugs. Integral to this strategy is the Organized Crime Drug Enforcement Task Force (OCDETF) program. Under this program, the efforts and expertise of federal, state, and local law enforcement agencies are coordinated in comprehensive attacks on major drug traffickers and their organizations. Several significant cases that illustrate our success in meeting these goals:
In the Southern District of New York the supervisor of a Colombian narcotics trafficking organization that sent ton-quantity cocaine loads from South America to New York City, pleaded guilty to charges relating to a 5,000-kilogram cocaine load sent from Colombia via Venezuela and Mexico to New York City in late 1998 or early 1999. The defendant is the younger brother of two notorious bosses of Colombian narcotics trafficking organizations that imported thousands of kilograms of cocaine from South America into the United States during the 1990s. By 1993 or 1994, the defendant himself became directly involved in the family drug business.
Page 46 PREV PAGE TOP OF DOC
A defendant in the District of Utah, who directed a drug trafficking organization responsible for bringing methamphetamine, marijuana, and cocaine from Mexico through Arizona and Southern California to Utah, pleaded guilty to operating a continuing criminal enterprise. The defendant admitted to distributing approximately 80 kilograms of methamphetamine over a two-and-half to three-year period.
In the Western District of Texas, two defendants were each sentenced to life imprisonment after a jury convicted them of running a continuing criminal enterprise that distributed approximately 75 tons of marijuana through the West Texas area and other parts of the United States. A third defendant pleaded guilty before trial to running a continuing criminal enterprise involving more than 30,000 kilograms of marijuana and was sentenced to 252 months in prison. More than 25 defendants connected to this drug distribution operation have now been convicted.
In the Middle District of Pennsylvania, the kingpin of a global Albanian organized crime group pleaded guilty to a 55-count indictment charging him under the Racketeering Influenced Corrupt Organization (RICO) statute with a broad range of criminal offenses that generated significant income. He acquired cocaine in multiple kilogram amounts from Colombian drug traffickers, among others, and would distribute the cocaine in the United States, often hiding the cocaine in the panels of the stolen cars that his confederates drove throughout the United States. He also shipped cocaine to Europe hidden in appliances. Members of his organization also stole the identities of credit card holders, manufactured counterfeit credit cards with that information, and then went to various stores and purchased hundreds of thousands of dollars worth of merchandise using the counterfeit credit cards.
Page 47 PREV PAGE TOP OF DOC
The protection of the American people against identity theft, health care fraud, and investment fraud remain important objectives of the United States Attorneys. Several cases illustrate that commitment:
In an identity theft case prosecuted in the Southern District of Texas, a Nigerian national was sentenced to 10 years in prison after pleading guilty to mail fraud and naturalization fraud for stealing the identities of 32 individuals and using the names of 30 different companies over a two-year period to open accounts with brokerage firms with the intention of causing more than $3.3 million in losses.
In the District of Massachusetts, a major American pharmaceutical manufacturer was ordered to pay a criminal fine of $290 million, the largest criminal fine ever imposed in a health care fraud prosecution, and was sentenced to five years probation after pleading guilty to conspiring to violate the Prescription Drug Marketing Act in connection with fraudulent drug pricing and marketing of a drug sold primarily for treatment of advanced prostate cancer. The defendant also agreed to settle its federal civil False Claims Act liabilities and pay the federal government $559 million for filing false and fraudulent claims with the Medicare and Medicaid programs. In addition, the defendant settled its civil liabilities to the 50 states and the District of Columbia for $25 million. The total amount paid will exceed $884 million.
In the Western District of Missouri, a pharmacist, who diluted drugs that had been prescribed as treatment for cancer patients, pleaded guilty to consumer product tampering, drug adulteration, and drug misbranding. He was sentenced to a term of 30 years imprisonment. The pharmacist and his corporation also were ordered to pay a fine of $25,000 and victim restitution of $10.5 million. As part of the parallel civil litigation, the Court entered a consent decree banning the pharmacist until further order of the Court from practicing pharmacy, possessing pharmacy licenses, or violating any provision of the Food, Drug, and Cosmetic Act. The assets previously frozen in the civil case were transferred to the criminal case for use as restitution by victims.
Page 48 PREV PAGE TOP OF DOC
A certified public accountant and escrow agent in the Northern District of Ohio was sentenced to 151 months in prison following his conviction on charges of wire fraud, mail fraud, tax evasion and money laundering related to his role as an escrow agent for two funding companies involved in fraud. During the time in question, the defendant received approximately $160 million dollars in investment funds from which he embezzled approximately $39 million. In a separate indictment, the defendant was also indicted for money laundering, involving approximately $22 million dollars. The two cases were consolidated for sentencing purposes. In addition, the defendant agreed to a $10 million dollar forfeiture order along with the forfeiture of several pieces of property.
While we have achieved considerable progress in the past year, more can be done to ensure the safety of our communities. Our Fiscal Year 2004 budget request will enable us to build on our success.
FISCAL YEAR 2004 BUDGET REQUEST
Before outlining the particulars of this request, let me make one caveat to my testimony. We are still analyzing the impact of the 2003 Omnibus Appropriations Act on our 2004 request. It is possible that some changes to the request may be required to reflect the 2003 enacted level. We will be working with the Appropriations Committee on this analysis and will keep you informed.
To carry out our mission in fiscal year 2004, we are requesting a budget of just over $1.5 billion to support 10,223 positions. The initiatives included seek an increase of 233 positions and $18,151,000.
Page 49 PREV PAGE TOP OF DOC
The President, Attorney General, and Deputy Attorney General asked that we look for opportunities to re-prioritize activities before seeking new resources, that we invest in programs that are of the highest priority and greatest value, and that we abandon activities that are not effective. Our 2004 budget request complies with these requests and includes savings to help us fund the enhancements we seek.
The request before you recognizes that the prevention of terrorism and the investigation and prosecution of terrorist acts are the most important responsibilities of every United States Attorney. Our 2004 request also recognizes that in addition to the pressing priority of terrorism there are still other crime problems that must be addressed at the federal level. To this end the request also includes resources to support the Corporate Fraud Task Force as well as other important programs.
As additional attorneys have been allocated to our offices in past years to address the strategic priorities of fighting terrorism, gun violence, and corporate fraud, a need has developed for additional support staff assistance. As a result, we are asking for 85 support staff positions, including paralegals, to begin to address the current workforce imbalance and enhance attorney productivity.
The Civil Divisions within the U.S. Attorneys' offices handled over 190,000 cases this past fiscal year and collected over 100 percent of their annual budgets through their enforcement and collection efforts. Our request for 60 new civil defensive positions will ensure that our offices can continue to defend the United States treasury in civil actions brought against government officials and agencies.
Page 50 PREV PAGE TOP OF DOC
Our 2004 budget request also allows us to continue to improve our information technology capabilities to provide attorneys the tools necessary to support our prosecution efforts and civil defensive work.
We expect to achieve savings by supporting Department-wide efforts to evaluate programs and operations with the goal of achieving across-the-board economies of scale. We will be assessing potential savings through improved business practices in the area of facilities management; human resource deployment; consolidation of IT support; and the centralization of procurement for relocation services. We are committed to identifying the savings necessary to help fund the new resources we seek.
We recognize that stewardship of appropriated funds is a serious responsibility and our commitment to sound management runs deep. At the request of the Deputy Attorney General, each United States Attorney has reported on the state of management in his or her district. These performance reports include accomplishments in national and district priority areas, office administration and resource management accomplishments, and the status of strategic planning in each district. By compiling the best practices identified in the U.S. Attorneys' performance reports, as well as those discovered through our Evaluation and Review program, we will provide all U.S. Attorneys concrete examples of how to improve the operations and management of their offices.
We also seek to identify performance measurements for the U.S. Attorneys' offices that are more results oriented. To this end, the United States Attorneys' conference held at the beginning of this fiscal year was dedicated to that subject.
Page 51 PREV PAGE TOP OF DOC
The United States Attorneys and EOUSA are dedicated to fighting terrorism, protecting our neighborhoods and schools from gun violence and drug-related crimes, upholding civil rights, and prosecuting those who commit corporate fraud. We believe that our FY 2004 budget request is a responsible request that will allow us to maintain the important programs designed to carry out the Department's strategic plan.
We hope to build on our successes in cooperation with this Subcommittee and with its support for the President's FY 2004 Budget request for the Offices of the United States Attorneys.
Again, I would like to thank you, Chairman Cannon, Congressman Watt and all the members of this Subcommittee for your continued support of the United States Attorneys' offices. I look forward to answering any questions that you may have at this time.
Mr. CANNON. Mr. Friedman, you are recognized for 5 minutes.
STATEMENT OF LAWRENCE FRIEDMAN, DIRECTOR, EXECUTIVE OFFICE FOR UNITED STATES TRUSTEES
Mr. FRIEDMAN. Thank you, Mr. Chairman, and Members of the Subcommittee.
Page 52 PREV PAGE TOP OF DOC Thank you for the opportunity to discuss the work of the United States Trustee Program, which is the component of the Department of Justice with responsibility for the oversight of bankruptcy cases and trustees.
To enhance the efficiency and the integrity of the bankruptcy system, the Program carries out broad administrative regulatory and litigation duties under both title 11 of the Bankruptcy Code and title 28 of the United States Code.
Our mandate is especially imposing in light of the significant growth in bankruptcy filings, which reached more than 1.5 million cases in fiscal year 2002. That is a 58.3 percent increase over the past 10 years. The Program is headed by the Director of the Executive Office for United States Trustees who is appointed by the Attorney General. The Director's duties include developing national Program policies and supervising field operations. I am both pleased and honored to serve in that capacity.
At Program headquarters, I am assisted by a staff of approximately 70 employees, of whom about half provide administrative support for regional and field offices.
Field operations are organized into 21 regions, each headed by a United States Trustee appointed by the Attorney General. Ninety-five field offices carry out the work of the Program in 88 judicial districts in 48 States and the territories. There are approximately 1,000 staff in the field with an average office consisting of 10 employees.
Among the United States Trustees' specific functions, we investigate and file enforcement actions to protect the system from fraud and abuse and to ensure compliance with the Bankruptcy Code.
Page 53 PREV PAGE TOP OF DOC
We work closely with the United States Attorneys, the FBI, and other law enforcement agencies to help ensure prosecution of criminal violations that affect the bankruptcy system.
We appoint and supervise approximately 1,400 private bankruptcy trustees who administer cases filed under chapter 7, 12, and 13 to ensure prompt administration, financial, and fiduciary accountability, and maximize potential return to creditors. These private trustees dispersed over $5 billion in 2002.
We oversee the administration of chapter 11 reorganization cases which involve some of the Nation's leading companies to ensure financial accountability and regularity, compliance with the Code, and plans for prompt disposition.
We review applications for the employment of professionals for potential conflicts of interest, review professional fee applications, establish creditors' committees, and file motions to convert or dismiss cases. If there is misconduct or egregious mismanagement, we appoint private trustees or examiners.
The United States Trustee Program is a self-funded agency, primarily through fees collected from debtors who file bankruptcy. By statute, these fees are deposited in the United States Trustee System Fund. None of these funds, as you know, can be expended by the Program until they are appropriated by Congress annually, and no general revenues are appropriated to fund our Program.
Page 54 PREV PAGE TOP OF DOC For fiscal year 2004, the Administration has requested a Program appropriation of $175.2 million, which represents an increase of $19.4 million over fiscal year 2003.
Finally, Mr. Chairman, with regard to the OIG Report referenced in your opening remarks, let me simply say that we found the report very helpful. You will find in our response to it and, as referenced in my earlier testimony, that most of our initiatives and the action points referenced in that report had already been instituted prior to the report being issued and since I have taken the helm at the Agency on March 4th of 2002.
Mr. Chairman, that completes my remarks, and I would be happy to answer any questions you or the Subcommittee may have. Thank you.
Mr. CANNON. Thank you, Mr. Friedman.
[The prepared statement of Mr. Friedman follows:]
PREPARED STATEMENT OF LAWRENCE A. FRIEDMAN
Mr. Chairman and Members of the Subcommittee:
I appreciate the opportunity to appear before you on behalf of the Department of Justice to discuss the work of the United States Trustee Program.
The United States Trustee Program (USTP or Program) is the component of the Department of Justice with responsibility for the oversight of bankruptcy cases and trustees. Our mission is to enhance the efficiency and the integrity of the bankruptcy system. We carry out broad administrative, regulatory, and litigation duties under both title 11 (the Bankruptcy Code) and title 28 of the United States Code.
Page 55 PREV PAGE TOP OF DOC
Our mandate is especially imposing in light of the significant growth in bankruptcy filings which reached more than 1.5 million cases in Fiscal Year 2002. This number reflects an increase in filings of 58.3 percent over the past ten years. Most of the increase has incurred in consumer cases, but business reorganization cases continue to demand significant time and attention as the size and complexity of business and accounting issues have grown exponentially.
The Program is headed by the Director of the Executive Office for United States Trustees located in Washington, D.C. The Director is appointed by the Attorney General. Among other duties, the Director is responsible for developing national Program policies and supervising field operations. I am assisted by a staff of approximately 70 employees. About one-half of these staff members provide administrative support for regional and field offices. Field operations are organized into 21 regions, with each region headed by a United States Trustee appointed by the Attorney General. Ninety-five field offices carry out the work of the Program in 88 judicial districts in 48 states(see footnote 1) and the territories.(see footnote 2) Field offices are headed by career Assistant United States Trustees and assisted by career attorneys, financial analysts, paraprofessionals, and support staff. There are approximately 1,000 staff in the field, with an average office consisting of ten employees.
Among the specific functions carried out by the United States Trustee Program are the following:
We investigate and file enforcement actions to protect the system from fraud and abuse, and to ensure compliance with the Bankruptcy Code.
Page 56 PREV PAGE TOP OF DOC
We work closely with the United States Attorneys, the FBI, and other law enforcement agencies to help ensure the investigation and prosecution of criminal violations that affect the bankruptcy system.
We oversee the administration of chapter 11 reorganization cases, which involve some of the nation's leading companies, to ensure financial accountability and regularity, compliance with the Code, and plans for prompt disposition. We review professional employment applications for potential conflicts of interest; review professional fee applications; establish creditors' committees; and file motions to convert or dismiss. If there is misconduct or egregious mismanagement, we appoint private trustees or examiners.
We appoint and supervise approximately 1,400 private bankruptcy trustees who administer cases filed under chapters 7, 12, and 13 to ensure prompt administration, financial and fiduciary accountability, and maximum potential returns to creditors. The private trustees disbursed over $5 billion in 2002.
In October 2001, the USTP commenced a National Civil Enforcement Initiative to address bankruptcy fraud and abuse. I described our purposes and activities in testimony delivered last month.
In summary, we undertook the National Civil Enforcement Initiative because of widespread concerns that the integrity of the bankruptcy system was being undermined by some debtors who received relief to which they were not entitled, as well as by attorneys and others who abused the bankruptcy system for illegitimate personal gain. With more than $5 billion in assets being distributed by trustees each year, and many billions more in debt discharged by consumers and corporations, the public clearly has a large stake in the proper administration of bankruptcy cases.
Page 57 PREV PAGE TOP OF DOC
The National Civil Enforcement Initiative consists of two major prongs:
(1) Debtor Misconduct: Under this prong of the Initiative, the Program uncovers such improper conduct as inaccurate financial disclosure, concealment of assets, ''substantial abuse,'' and misuse of social security numbers by those who seek the discharge of debts despite an ability to repay. The primary civil remedies sought by Program attorneys are dismissal under 11 U.S.C. §707(a) and (b) and denial of discharge under §727.
(2) Consumer Protection: The Program also seeks to protect debtors and creditors who are victimized by those who mislead or misinform debtors, file bankruptcy petitions without a debtor's knowledge, make false representations in a bankruptcy case, or commit other wrongful acts in connection with a bankruptcy filing. Primary targets are unscrupulous bankruptcy petition preparers and attorneys. The primary remedies sought are fines and injunctions under 11 U.S.C. §110, disgorgement of fees under §329, and other sanctions.
The results of our first year after implementing the National Civil Enforcement Initiative are dramatic. During Fiscal Year 2002, field offices reported taking more than 50,000 civil enforcement and related actions (including cases resolved without resort to litigation) that resulted in an overall potential return to creditors of approximately $160 million.
The United States Trustee Program is a self-funded agency. The USTP is funded primarily through fees collected from debtors who file bankruptcy. By statute, these fees are deposited into the United States Trustee System Fund. None of the funds can be expended by the Program until they are appropriated by Congress annually, and no general revenues are appropriated to fund the Program.
Page 58 PREV PAGE TOP OF DOC
Revenue in excess of the annually-appropriated amount remains in the System Fund. The monies appropriated typically total less than the monies collected. At the end of Fiscal Year 2002, the System Fund held $186,345,311 in funds not appropriated for Program use.
For Fiscal Year 2004, the Administration has requested a Program appropriation of $175.2 million, which represents an increase of $19.4 million or 12.5 percent over the Fiscal Year 2003 operational level.
Consistent with the President's Management Agenda and statutory mandates, the Program has taken a number of performance-based management reforms. We are committed to improving our ability to identify agency goals and to measure our progress in reaching those goals. These reforms include the following:
We developed a ''Significant Accomplishments Reporting System.'' This System includes a new data base to measure approximately 100 work elements, including motions filed and informal enforcement actions not leading to litigation, and the results achieved. We are now better able to record and track specific enforcement and case administration activities at the time they occur. To improve the reliability of the System, and to ease the associated administrative burden, the System has been completely automated. The automated System will be fully operational in all field offices by May 1, 2003, having been developed, piloted, and provided to the field offices in less than one calendar year. The System will continue to be refined and improved in the future.
We revamped our budget submissions under the Government Performance and Results Act (GPRA) to better reflect the costs and benefits associated with various program activities. We are continuing to review our GPRA and related measures so that we can more fully integrate management and budgeting functions.
Page 59 PREV PAGE TOP OF DOC
That completes my prepared remarks, and I would be happy to answer any questions you and the Subcommittee members may have.
Mr. CANNON. Since I expect we will do a couple of rounds here, I would normally defer to others for the first questioning if we only had one round of questions, but I tend to take the first questioning, unless either of my Members here would like to go first.
Do either of you have something you have to get to?
Thank you. Then if you don't mind, I will begin with some questioning.
First, Mr. Sansonetti, directed to you. And perhaps Mr. Schiffer you will have something to add on these points. Regarding the Cobell versus Norton case, what is the relationship between the Indian Tribal Trust cases being handled by the Environment Division and the Cobell being handled by the Civil Division? Why was the change made as to the division representing Cobell, and how does this relate to the increase in funds which ENDR is requesting for Tribal Trust Fund case defense?
Mr. SANSONETTI. Well, Mr. Chairman, the Cobell case is a class-action lawsuit, which is supposedly constituting all the past and present individual Indian money accounts. There are some 300,000 individual money accounts that are at stake in that case.
In contrast, the Tribal Trust cases, which are in the Division, are brought on behalf of tribes and not the individual Indians. There are 22 of those cases at the present time while there is over 470 Federally recognized tribes in the United States, and so I anticipate that the number of cases will go up from 22 in the future.
Page 60 PREV PAGE TOP OF DOC
We havein relation to the question as to why we are asking for the additional monies, we have at the present time in our General Litigation Section, the attorneys that defend these Tribal Trust cases, there are only eight of them. They are already handling the 22 cases. The Civil Division has been good enoughand this is before my timeas to take over the Cobell case on the individual accounts. And so we work with the Bureau of Indian Affairs and the folks in the Department of Interior including their Solicitor's Office in developing the defense for those cases.
I would also note that there is a difference in the type of cases that are involved in the fact that the Cobell suit is a strict APA case asking for an accounting, how much was supposed to come to us, how much did come to us. And they, basically, allege a failure to perform a nondiscretionary duty.
In the Tribal Trust cases, not only do you have the APA allegations, but you also have allegations of asset mismanagement, that the highest royalty figure was not obtained for a certain natural resource found on a particular reservation.
So, the suits may be just simply the tip of the iceberg as far as those 22 are concerned. Some of them are in the Court of Federal Claims, which of course then requires appeals to the Federal Circuit. Others are before various U.S. District Judges, about eight of the 22 having been assigned to Judge Lamberth, who also has the oversight over the Cobell case.
Mr. CANNON. Was there any conflict of interest in the ENDR that caused the move over to Civil?
Page 61 PREV PAGE TOP OF DOC
Mr. SCHIFFER. There were concerns of that sort, Mr. Chairman. There were contempt motions being filed or motions seeking the imposition of contempt sanctions against, actually, two successive teams of attorneys in the Environment Division and a number of officials in Interior.
I should add that similar allegation have been made against almost anyone who comes near the Cobell case, including all of the attorneys in the Civil Division that worked on it, and then, in a statement putting everything on the table, I have personally been among the lawyers sanctioned by Judge Lamberth.
We have been obtaining waivers from the appropriate officials to permit us to continue, because we are simply at a point where it makes no sense and would be unfair to the United States for us to seek yet another team of lawyers to handle the case.
Mr. CANNON. Would you describe what you mean by personally sanctioned?
Mr. SCHIFFER. I hate to go into great detail about the inglorious end of my 40-year career at the Department, but in December I was, or I think, six of us were referred, to the Disciplinary Committee of the United States District Court for the District of Columbia for what the judge regarded as inappropriate conduct by attorneys.
In February, an order was entered where approximately the same number of attorneys and largely overlapping names were ordered personally to pay the plaintiffs' costs of engaging in certain discovery. A similar order was entered in March.
Page 62 PREV PAGE TOP OF DOC
Mr. CANNON. Thank you.
Do you know, Mr. Schiffer, Mr. Sansonetti, of any other judges in the history of America who have held any Secretaries of any department in contempt?
Mr. SCHIFFER. I do not.
Mr. SANSONETTI. I do not.
Mr. CANNON. We took a brief look. I am glad to have such a wise counsel at this point. I don't think so. And I think we have here a judge who has held four Secretaries in contempt. And Mr. Schiffer, I want to come back to who else was held or sanctioned, and what that does to your job. But my time has run, and consistent with my habit, we are going to yield back and call on the gentleman from Florida, Mr. Feeney, if he has questions.
Mr. FEENEY. Well, Mr. Chairman, my time is your time. And if you would like to continue along your line of questioning, I am fascinated by it, and I will pick up when you are through.
Mr. CANNON. Thank you. We will go to a second round of questioning then, and we will continue this discussion.
You had mentioned that six other people were sanctioned. Were those members of your Division or ENDR?
Page 63 PREV PAGE TOP OF DOC
Mr. SCHIFFER. These are all Civil Division attorneys.
Mr. CANNON. Was anybody sanctioned on the ENDR side?
Mr. SCHIFFER. There are pending proceedings that we are handling, and private counsel are handling involving, I think, some five dozen individuals by now in the Environment Division and the Department of Interior.
Mr. SANSONETTI. So it is both.
Mr. CANNON. What, now Ido I understand, Mr. Schiffer, what you said was these cases were moved, this case was moved from the ENDR to your Division because of concern on the part of the lawyers in ENDR that they would be subject to sanction?
Mr. SCHIFFER. And I think departmental administration thought that it might make sense to get a fresh team of lawyers in the case, which was something I wish they could reconsider at this time.
Mr. CANNON. I suspect that you might feel that way. Can you tell me a little bit about the sense of concern among your attorneys who are subject to the sanctions?
Mr. SCHIFFER. It is, obviously, not something pleasant.
Page 64 PREV PAGE TOP OF DOC We are a mix of very senior people who have had long, if not illustrious, but have had long careers and have never before been sanctioned in any form nor had sanctions been sought against us either by a judicial body or professional association. And then, at the other end of the spectrum, at least one or two of the very youngest attorneys, who are just beginning their careers and are understandably very, very concerned about what they regard as serious reputational damage that has already occurred.
Mr. CANNON. And I met with a Former Deputy Solicitor in the former Administration, the Deputy Solicitor from the Interior Department who left because of the sanctions.
Are either of you awarethat is, he left public service because he was concerned about what these sanctions would do to him professionally and personally and from the point of view of his long-term career. Are either of you aware of others who have left public service in either the Justice Department or the Interior Department because of these sanctions?
Mr. SANSONETTI. I am not. Of course, I have just been there a year. But I can tell you that within the shop of our 400 attorneys, there is hardly a line standing outside my door to sign up to defend the Tribal Trust cases. And with 22 of those already on our plate and more yet to come, you can see why the eight attorneys that are assigned these defenses are already relatively overwhelmed.
Mr. SCHIFFER. I should add, I am also aware of people who had seemed very interested in joining us as new attorneys in the Division and who have asked the right questions and been told about the Cobell case and have declined our offers, telling us that it is because of the likelihood they might have to work on the case that they have decided not to join the Civil Division.
Page 65 PREV PAGE TOP OF DOC
Mr. CANNON. So you can't get your senior guys to do it, and you can't get new guys to come in.
Mr. SCHIFFER. Well, it speaks to the wisdom of the people that we try to recruit.
Mr. CANNON. At least they are smart enough to recognize the problem. Can you give us an idea of how many people have looked at this and decided it is too difficult?
Mr. SCHIFFER. I don't know the number, but I have heard from time to time.
Mr. CANNON. Shifting gears just a little bit here. There are, apparently Ernst and Young did an audit that cost something in the neighborhood of $20 million. Are either of you familiar with that? And was that ordered by the Court or did Interior do that on their own?
Mr. SCHIFFER. Well, it is a mix, Mr. Chairman. The Court had ordered very, very extensive discovery involving just massive numbers of documents. There was controversy in the case over whether the documents were sufficient to permit accounts to be reconciled, whether all relevant documents had been produced. And the Interior Department undertook, with respect to the five named plaintiffs, to have Ernst & Young go back and see if it could account for the money coming in and out of the accounts, and Ernst & Young did so.
Page 66 PREV PAGE TOP OF DOC
Mr. CANNON. My understanding is that they found ano misplacement, a decimal point herea $60.94 problem after a $20 million inquiry? Are you familiar with that?
Mr. SCHIFFER. Yes, sir. That is my understanding, as well.
Mr. CANNON. Well, nice to know we have books, I guess.
Secretary Norton was ruled in contempt of court last December for deceiving Judge Lamberth about the DOI's failure to reform a trust fund for Native Americans, and ordered DOI to reappear in May to explain and rectify further accounting problems relating to the Cobell case.
Could you explain, either of you, for the Subcommittee to what efforts have been made or are currently under way to conform to Judge Lambert's ruling and avoid any subsequent contempt rulings being directed at Secretary Norton and other staff and other Secretaries?
Mr. SCHIFFER. Well, I probably shouldn't discuss the contempt rulings at length. They are being argued on appeal in just a few weeks, April 24, in the United States Court of Appeals for the District of Columbia Circuit.
I do know personally the Secretary has devoted enormous amounts of her own time and that of her senior staff in dealing with this litigation.
Page 67 PREV PAGE TOP OF DOC
Mr. CANNON. If I might, Mr. Schiffer, can I just interject and say that I serve on the Resources Committee.
I preceded Mr. Sansonetti in the Solicitor's Department. I am close to Interior people, I am very closethe people who are now running the Department are people who were there when I was there, and they are busting their guts to deal with this lawsuit, and it is keeping them from doing and implementing the policies of this President and the people of America. And that is my soap box, but I am more aggravated than I can say about this, and I hope that doesn't come through in the tone of my questions.
But let me just ask to follow up on one issue. You point out that you are reluctant to talk about a matter that is under appeal. And, you know, this is not the Appellate Court; this is another branch of Government. And it seems to me we find ourselvesand I would like you to both comment on thiswith you as members of the Executive Branch uncomfortable talking with members of the Legislative Branch, who happen to have particular concerns about this very subject matter because you have got a Member of the Judiciary who has subjected you, Mr. Schiffer, personally to contempt citations. And it seems to me that we have a little bit of a conflict among the three branches here.
I would very much appreciate your opinions, if you are courageous enough. I shouldn't say that. That is unfair. I know you are courageous enough. If you feel you could comment on that.
Mr. SCHIFFER. I wasn't really trying to avoid discussion of the case with the Chairman.
Page 68 PREV PAGE TOP OF DOC
I did start by announcing I had been sanctioned three times. So if I am a little bit reluctant toI mean, I have only limited assets available, so I suppose at a certain point I shouldn't care, but I know that others do.
And part of my motivation, in saying I was reluctant to discuss the issues, is that I am sure my colleagues who are going to argue the appeal would much prefer to do so themselves than have me butcher them.
But the Chairman was not exaggerating at all when you talked about the amount of time that senior managers, including the Secretary herself, have been devoting to this case. She is just an extremely sincere individual. And so the notion that she is doing anything to place herself arguably in contempt of the Court is certainly foreign to me. The Court has ruled otherwise, and this is why we have courts of appeal.
Mr. CANNON. Can you give us counsel on what this Branch should do to oversee what this judge is doing in this process?
Mr. SCHIFFER. I am obviously the one who needs counsel. There may well have to be a legislative solution to the case itself at a certain point. I cannot give the Chairman counsel, I think, on the judge as an individual. That is again why we have courts of appeal. We seek redress in those courts.
Mr. CANNON. The courts of appeal are the judicial process for correcting errors. We also have other corrective measures, but it is not fair, I don't think, to ask you to comment on that.
Page 69 PREV PAGE TOP OF DOC
Mr. SCHIFFER. Article 3 of the Constitution is a wonderful thing, Mr. Chairman. It appoints judges for life as long as they engage in good behavior. And it is not for me to I think try to discuss what constitutes good behavior at this point.
Mr. CANNON. It occurs to the mind that there are actually many levels of checks and balances here which we need to consider.
But I do want to pursue just one other issue, if the gentleman from Florida wouldn't mind, because it was so very difficult for many people. That is, that apparently Joseph S. Kieffer, III, was appointed by Judge Lamberth as Special Master Monitor to the Cobell case.
He hired a team of computer hackers in order to test the security of DOI's computer systems, specifically those which contained information relating to the Tribal Trust accounts. As a result, Judge Lamberth ordered the subsequent shutdown of DOI's computer system until the Tribal Trust information could be verified as secure. And, that through this there was a massive blackout of DOI's computer ability, that is its web presence and its information capabilities. My office worked closely with DOI. We couldn't get information from them. And when we called them, which is, of course, the awkward way to do it, we couldn't get the information because of their blackout. And, that to this date, there is still some component of DOI's computer network which is not up and running including the Bureau of Indian Affairs.
Could you please explain how much longer you expect this situation to continue and what efforts are under way within DOI or DOJ to comply with this order? And also, is it true that subsequent to Judge Lamberth's order, that DOI was actually rendered unable to send out royalty checks, royalties to tribes and individuals under the Trust Account for 2 months?
Page 70 PREV PAGE TOP OF DOC
Mr. SCHIFFER. I should start, I suppose, by noting there are two Special Masters that the Court has appointed and who are being paid for at Government expense. I would add, Mr. Kieffer is one of them. Alan L. Balaran is the second one.
It was Mr. Balaran, who with the Court's approval in the form of an order that had been entered, even though we had not known about it, hired a company to tap into essentially the Interior Department computers. I think that about 95 percent of them are now back online.
It is also accurate that there was a period where checks were delayed. That problem has been taken care of, and I think all the checks are current.
Mr. CANNON. Are you aware of any of the personal problems that were caused by checks not being delivered either of you?
Mr. SANSONETTI. I, personally, am not.
Mr. SCHIFFER. I have certainly heard about them. And, of course, there were other problems, such as people being unable to gain access to National Park Service websites and the like.
Mr. CANNON. Those were greatly inconvenient, I might say. I see that my time has actually expired.
Page 71 PREV PAGE TOP OF DOC We note that Mr. Watt has joined us, and if you will allow Mr. Watt, we have done an extended questioning here that I participated in. But Mr. Feeney has been gracious enough to let me do that. Would you mind if we yield 5 minutes to him?
Mr. WATT. Go right ahead.
Mr. CANNON. Mr. Feeney, you are recognized for 5 minutes.
Mr. FEENEY. Well, thank you, Mr. Chairman.
I was fascinated by your discussion of a case that I was unfamiliar with, the Cobell case. And I obviously can't opine in view of the facts of the case or the participants or the counsel on either side. It is sort of amazing that one Federal judge apparently can shut down or immobilize the better part of a department including a half-dozen or a dozen attorneys and as many as 60 people that feel under some sort of threat, which doesn't by the way opine as to whether or not the behavior of any individual or the entire Justice Department for that matter has been appropriate. But I guess I had a couple questions.
Has there been any effort to ask the judge to recuse? Is it him? Is Royce a mister?
Mr. SCHIFFER. Judge Lamberth? Yes.
Mr. FEENEY. Okay. Any effort to ask the judge to recuse himself given his obviousI mean, something has gotten the judge's ire, either rightfully or wrongfully, and he has now threatened between one and five dozen employees of the United States Government.
Page 72 PREV PAGE TOP OF DOC
Mr. SCHIFFER. A number of private counsel representing individuals against whom sanctions have been sought, contempt sanctions largely, have filed such motions, Mr. Feeney.
Mr. FEENEY. So that in addition to the dozen or five dozen public counsel, there are private counsel that have been apparently subjected to the same
Mr. SCHIFFER. I am sorry. I think I am confusing things. There have been private counsel retained at Government expense to represent the interests of the individuals, because the determination was made that the sanctions were being sought as a result of the performance of their official duties.
Mr. FEENEY. And so there has been some suggestion or formal request for the judge to consider recusing himself?
Mr. SCHIFFER. That is correct.
Mr. FEENEY. And he hasn't responded to that yet?
Mr. SCHIFFER. That is an issue that is now also pending before the Court of Appeals.
Mr. FEENEY. Has there been any effort to discipline the judge based on his judicial canons, been filed as a formal matter?
Page 73 PREV PAGE TOP OF DOC
Mr. SCHIFFER. I am not aware of anything of that sort.
Mr. FEENEY. Well, of course, the Chairman asked rhetorically, and I understand that sometimes we ask the Executive Branch for advice, but ultimately in separation of powers issues, you are probably not the court of last resort in terms of article 1 powers. And you suggested the importance of article 3, I happen to believe that, too, but I also like article 1, especially now that I am in Congress.
And it seems to me that at a minimum that Congress has the right to set the jurisdiction of Federal judges. Harassing several dozen members of the Justice Department seems to be something that we could effect with our jurisdictional powers. And you may or may not have an opinion on that. And then ultimately, of course, there is the question of the judge's good behavior. And so this is something I intend to look into. And, again, I have no opinion about the facts. I have no opinion about the behavior of individual counsel or anybody in the Judicial Department, but it does seem to me that we have got a significant portion of our Justice Department paralyzed by one Federal judge that somebody, somewhere has got to answer as to whether or not the judge has behaved appropriately.
And you can comment on that if you would like, Mr. Sansonetti, but if you would prefer not to, I understand that, too.
Mr. SANSONETTI. Well, I think the topic that you are discussing is probably important from the standpoint of why we are here asking for the additional monies today. Because ultimately it is the Congress's job to make sure that you appropriate only the necessary monies from the public fisc for our duties.
Page 74 PREV PAGE TOP OF DOC
And the amount that I am asking for is an additional $3 million for my Tribal Trust initiative. That may be able to garner me 15 attorneys with some support staff, a couple legal secretaries. Add that to the eight folks, that is still maybe 23 attorneys handling 22 cases. You know, usually you would have law firms, whole law firms assigned to a case of this magnitude. If you add up the dollars that are being sought by the tribes, we are in the billions.
So if the cases are not litigated properly, then the public fisc is at risk.
And so the reason I made that reply to the Chairman about this 22 casesthese 22 cases being the tip of the iceberg is, in my case, these Tribal Trust cases have been filed say maybe since 2001, 2002. Mr. Schiffer's Civil Division has been dealing with the Cobell case for years now. You know, what if another 22 are filed next year? Another 10 this year?
So I am going to have to come back to you as long as this is going on each and every year to ask for an increase, because just like eight attorneys is not enough to handle 22 cases, I can already see that 23 attorneys is hardly going to be enough, either, if we get additional cases added too. And given that eight of these cases are also in front of Judge Lamberth, there are going to be a whole series of things that we are going to have to do to comply with discovery, et cetera, that are going to be very time consuming.
And, needless to say, if people fall behind or are having difficulty getting their arms around the scope of the discovery, then there are potential sanctions down the road as well.
Page 75 PREV PAGE TOP OF DOC
Mr. FEENEY. Mr. Chairman, if I could have unanimous consent for one more short question? I don't know how long the answer will be.
Mr. CANNON. Without objection.
Mr. FEENEY. To finish up this line of thought. To the extent that individuals in the Justice Department have had to hire private counsel to protect their interests and to the extent that they may be found innocent or whatever civil or criminal sanctions the judge or others would bring, will the taxpayers be obligated to reimburse individual attorneys in the Justice Department?
Mr. SCHIFFER. At this point, Congressman, I think that all of the attorneys are being paid for by the Department of Justice by taxpayer funds.
Mr. FEENEY. Okay. Thank you.
Mr. CANNON. The gentleman yields back.
Mr. Watt, would you like to question?
Mr. WATT. I just wanted to say to the witnesses that I apologize for not being here. We had a Rules Committee hearing that was going on in a case that is coming to the floor either tomorrow or Thursday, and I was required to be there.
Page 76 PREV PAGE TOP OF DOC So I don't have any questions. I will look at the transcript and look at your testimony, and but it is certainly was not out of a lack of regard for the importance of what you are doing here. I know that it is very important, but it is still impossible to be in two places at one time.
Thank you. I yield back.
Mr. CANNON. Thank you, Mr. Watt.
We have tried your patience sorely on a pretty narrow issue. I apologize for that. We have a number of questions that transcend the ability and the timeframe of this hearing to ask, so we will ask those questions in writing and if you could respond in writing that would be very helpful.
There are a number of issues out there that are very serious. For instance, my understanding is that you have got about 60 percent of your Environmental Division's cases that are defensive and therefore they are essentially nondiscretionary. Is that enough?
So we are going to ask those kinds of questions. We will appreciate your response to those. And I want to thank you all for coming today, and the Committee will be adjourned.
[Whereupon, at 3 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Page 77 PREV PAGE TOP OF DOC
Material Submitted for the Hearing Record
PREPARED STATEMENT OF THEODORE B. OLSON
Mr. Chairman and Members of the Subcommittee: Thank you for inviting me to present this written testimony regarding the Office of the Solicitor General in connection with the Committee's hearing.
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.
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:
Page 78 PREV PAGE TOP OF DOC
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 on grounds that do not implicate the executive branch's constitutional authority when a good faith defense exists. The Solicitor General also defends regulations and decisions of Executive Branch departments and agencies, and is 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 adverse parties who were 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 generally seeks and receives permission to participate in oral argument in those cases in which the government has filed an amicus brief on the merits.
Page 79 PREV PAGE TOP OF DOC
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. In cases of particular importance to the government, lawyers from the Office of Solicitor General will directly handle litigation in the lower federal courts. Recent examples include the Microsoft antitrust appeal, important criminal procedural issues when addressed by the courts of appeals en banc, and cases involving enemy combatants.
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 the full rights of a party.
Page 80 PREV PAGE TOP OF DOC The various decisions discussed above for which the Solicitor 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 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 or members of his staff to meet with counsel for the parties in an effort to understand their respective positions and interests of the United States that might warrant its participation.
II. ORGANIZATION OF THE SOLICITOR GENERAL'S OFFICE
The Office of the Solicitor General has a staff of 48, of which 22 (including the Solicitor General) constitute its legal staff and the remainder serve in managerial, technical, or clerical capacities. Of the 22 attorneys, four are Deputy Solicitors General, senior lawyers with responsibility for supervising 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. One of these assistant positions is currently vacant. The seventeenth, the Tax Assistant, is a senior lawyer who devotes himself almost entirely to litigation arising under the Internal Revenue Code. Additionally, OSG employs four lawyers who 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.
Page 81 PREV PAGE TOP OF DOC
The authorized personnel levels and budget of the Office of the Solicitor General have remained relatively stable in recent years. Fiscal Year 2003 funding level is 49 workyears and $7,656,000. About 90% of the Office's budget pertains to nondiscretionary items. For example, approximately 75% is devoted to personnel and personnel-related costs, 12% to GSA rent, and 3% 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.
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 2001 Term of the Supreme Court (June 30, 2001 to June 28, 2002), the Solicitor General's Office handled approximately 3657 cases in the Supreme Court. We filed full merits briefs in 66 cases considered by the Court (and presented oral argument in 65 of those cases),(see footnote 3) which represented 83% of the cases that the Supreme Court heard on the merits in that Term. The government prevailed in 84% of the cases in which we participated. We filed 23 petitions for a writ of certiorari or jurisdictional statements urging the Court to grant review in government cases, 450 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 3108 petitions for certiorari. In response to invitations from the Supreme Court, we also filed 10 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.
Page 82 PREV PAGE TOP OF DOC
During this same one-year period, the Office of the Solicitor General reviewed more than 2145 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 any court. In the past year, lawyers from the Office of Solicitor General personally handled an additional 5 arguments in the courts of appeals and another 5 major arguments in the district courts. Thus, during this one-year period, the Office of the Solicitor General handled well over 5802 substantive matters on subjects touching on virtually all aspects of the law and the federal government's operations.
In carrying out the foregoing responsibilities, my staff and I have productively and efficiently adhered to the time-honored traditions of the Office of the Solicitor Generalto be forceful and dedicated advocates for the government, as well as officers of the Court with a special duty of candor and fair dealing.
Page 83 PREV PAGE TOP OF DOC
Page 84 PREV PAGE TOP OF DOCSchif1.eps
Page 85 PREV PAGE TOP OF DOC
Page 86 PREV PAGE TOP OF DOCLewis12.eps
Page 87 PREV PAGE TOP OF DOC
(Footnote 1 return)
By statute, judicial districts in North Carolina and Alabama are not included in the United States Trustee Program. Bankruptcy courts in those districts employ Bankruptcy Administrators to carry out many of the functions otherwise conferred upon the USTP.
(Footnote 2 return)
The USTP has responsibility for bankruptcy cases filed in Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana Islands.
(Footnote 3 return)
Of the 66 merits briefs filed, some were consolidated resulting in 1 oral argument.