[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
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
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
APRIL 8, 2003
__________
Serial No. 28
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
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87-407 WASHINGTON : 2004
_____________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
CHRIS CANNON, Utah Chairman
HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina
JEFF FLAKE, Arizona JERROLD NADLER, New York
JOHN R. CARTER, Texas TAMMY BALDWIN, Wisconsin
MARSHA BLACKBURN, Tennessee WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio ANTHONY D. WEINER, New York
TOM FEENEY, Florida
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
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APRIL 8, 2003
OPENING STATEMENT
Page
The Honorable Chris Cannon, a Representative in Congress From the
State of Utah, and Chairman, Subcommittee on Commercial and
Administrative Law............................................. 1
WITNESSES
The Honorable Thomas Sansonetti, Assistant Attorney General,
Environment and Natural Resources Division
Oral Testimony................................................. 5
Prepared Statement............................................. 7
Mr. Stuart Schiffer, Deputy Assistant Attorney General, Civil
Division
Oral Testimony................................................. 10
Prepared Statement............................................. 11
Mr. Guy Lewis, Director, Executive Office for United States
Attorneys
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Mr. Lawrence Friedman, Director, Executive Office for United
States Trustees
Oral Testimony................................................. 20
Prepared Statement............................................. 22
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement from Theodore B. Olson, Solicitor General of
the United States.............................................. 33
Additional Questions from Chairman Chris Cannon.................. 36
Additional Questions and Responses Presented to the Honorable
Thomas Sansonetti by Chairman Chris Cannon..................... 46
Additional Questions and Responses Presented to Stuart Schiffer
by Chairman Chris Cannon....................................... 52
Additional Questions and Responses Presented to Guy Lewis by
Chairman Chris Cannon.......................................... 66
Additional Questions and Responses Presented to Lawrence Friedman
by Chairman Chris Cannon....................................... 84
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,
Washington, 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.
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 Division--I will call
that ENRD from now on--first 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 Congress--so we want to treat you guys
well, by the way--cabinet 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.
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:
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 that--members of this
panel included on this side of the dais--that 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.
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.
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 State--or 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.
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.
And we will now turn the time over to Mr. Sansonetti for 5
minutes, please.
Thank you.
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.
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.
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.
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.
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
introduction
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 initiatives--the 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.
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.
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.
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.
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 initiatives--the 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.
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 billion--and 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.
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.
conclusion
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.
STATEMENT 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.
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.
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 government--from 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 operations--contract 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.
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 Force--a
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.
national security
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 seriously--to
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 litigation--
preparing motions, taking depositions, negotiating settlements,
conducting trials, and pursuing appeals.
protecting the public fisc
Our dockets are filled with cases that involve monetary claims--the
majority are claims against the Government and huge sums are at risk.
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 action--perhaps 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.
workload trends
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 matters--driven 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
workload--some 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 Act--to 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-fold--a 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.
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 2001--
more 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.
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.
107-42) 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.
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.
immigration litigation
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.
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.
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.
performance
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 2002--as 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.
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.
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.
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.
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.
overview
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.
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.
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.
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.
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:
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
1974-1997.
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.
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.
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.
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.
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.
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.
conclusion
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.
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.
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.
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.
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 \1\ and
the territories.\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.
---------------------------------------------------------------------------
\1\ 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.
\2\ The USTP has responsibility for bankruptcy cases filed in
Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana
Islands.
---------------------------------------------------------------------------
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.
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.
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. Sec. Sec. 707(a) and
(b) and denial of discharge under Sec. 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. Sec. 110,
disgorgement of fees under Sec. 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.
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.
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.
We have--in 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 enough--and this is before my time--as 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?
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.
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?
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 I--do 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.
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 aware--that 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.
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.
Mr. Cannon. My understanding is that they found a--no
misplacement, a decimal point here--a $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.
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 close--the 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
ourselves--and I would like you to both comment on this--with
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.
I did start by announcing I had been sanctioned three
times. So if I am a little bit reluctant to--I 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.
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?
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.
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 obvious--I 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.
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?
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.
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 cases--these 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.
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.
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
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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:
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.
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.
______
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.
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), \1\ 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.
---------------------------------------------------------------------------
\1\ Of the 66 merits briefs filed, some were consolidated resulting
in 1 oral argument.
---------------------------------------------------------------------------
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.
iv. conclusion
In carrying out the foregoing responsibilities, my staff and I have
productively and efficiently adhered to the time-honored traditions of
the Office of the Solicitor General--to be forceful and dedicated
advocates for the government, as well as officers of the Court with a
special duty of candor and fair dealing.
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