No FEAR Act: Methods the Justice Department Says It Could Use to
Account for Its Per-Case Costs Under the Act (22-JUL-04,
GAO-04-863).
Allegations of violations of employment discrimination and
whistleblower protection laws against federal agencies can end up
in federal court, at which point Department of Justice (DOJ)
attorneys generally take over representation of the agency.
Attorneys within Justice's Civil Division and U.S. Attorneys
Offices generally handle this type of litigation. The
Notifications and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (No FEAR Act) requires agencies to repay
the Department of the Treasury's Judgment Fund for discrimination
and whistleblower protection settlements and judgments paid on
their behalf. While the No FEAR Act does not require agencies to
reimburse DOJ for costs incurred in defending them in cases
covered under the Act, it does require GAO to review how DOJ
could ascertain the cost of representing agencies in each case
and what the burden of performing this accounting would be. Based
on this requirement, our report provides information on (1) the
methods DOJ says it could use to account for the personnel and
non-personnel costs that it incurs in handling cases covered
under No FEAR on a per-case basis and how soon the Department
expects it would be able to do so, and (2) how costly DOJ expects
it would be to account for each case. We make no recommendations
in this report.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-04-863
ACCNO: A10959
TITLE: No FEAR Act: Methods the Justice Department Says It Could
Use to Account for Its Per-Case Costs Under the Act
DATE: 07/22/2004
SUBJECT: Cost accounting
Court costs
Employment discrimination
Federal agencies
Financial management systems
Intergovernmental fiscal relations
Investigations into federal agencies
Labor costs
Lawyers
Litigation
Reimbursements to government
Whistleblowers
Treasury Judgment Fund
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GAO-04-863
United States Government Accountability Office
GAO Report to Congressional Recipients
July 2004
NO FEAR ACT
Methods the Justice Department Says It Could Use to Account for Its Costs Per
Case under the Act
a
GAO-04-863
Highlights of GAO-04-863, a report to congressional recipients
Allegations of violations of employment discrimination and whistleblower
protection laws against federal agencies can end up in federal court, at
which point Department of Justice (DOJ) attorneys generally take over
representation of the agency. Attorneys within Justice's Civil Division
and U.S. Attorneys' Offices generally handle this type of litigation.
The Notification and Federal Employee Antidiscrimination and Retaliation
Act of 2002 (No FEAR) requires agencies to repay the Department of the
Treasury's Judgment Fund for discrimination and whistleblower protection
settlements and judgments paid on their behalf. While the No FEAR Act does
not require agencies to reimburse DOJ for costs incurred in defending them
in cases covered under the act, it does require GAO to review how DOJ
could ascertain the cost of representing agencies in each case and what
the burden of performing this accounting would be. Based on this
requirement, our report provides information on (1) the methods DOJ says
it could use to account for the personnel and nonpersonnel costs that it
incurs in handling cases covered under No FEAR on a per-case basis and how
soon the Department expects it would be able to do so, and (2) how costly
DOJ expects it would be to account for each case. We make no
recommendations in this report.
www.gao.gov/cgi-bin/getrpt?GAO-04-863.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact George H. Stalcup at (202)
512-9490 or [email protected].
July 2004
NO FEAR ACT
Methods the Justice Department Says It Could Use to Account for Its Costs Per
Case under the Act
The two DOJ offices that handle cases covered under No FEAR could start to
account for these costs on a per-case basis by the beginning of fiscal
year 2006 by changing their current systems and procedures. The Executive
Office of United States Attorneys (EOUSA) provides accounting for the U.S.
Attorneys, who handled the vast majority of employment discrimination
cases for DOJ in fiscal year 2002. EOUSA officials said they could account
for the per-case costs of cases covered under No FEAR beginning in fiscal
year 2006 by using a modification of the way the office currently accounts
for health care fraud cases as a group. One change necessary would be for
U.S. Attorneys and their paralegals to begin to track their time by case,
not by group, as they do now. EOUSA would also need to revise its
calculation of nonpersonnel costs to allocate these costs to individual
cases, instead of by group. The Civil Division could account for No FEAR
cases on a per-case basis by the beginning of fiscal year 2005 in the same
way it currently conducts per-case accounting for vaccine injury
compensation cases. This would include identifying personnel costs by
requiring Civil Division legal professionals to track their time for each
No FEAR case on which they work and allocating nonpersonnel costs to each
case using a formula for allocating these costs based on the relative
amount of time that legal professionals work on No FEAR cases versus all
other cases.
The changes needed for DOJ to begin accounting for costs it incurs in
cases covered under No FEAR on a per-case basis would require both
start-up and recurring costs. EOUSA says that per-case accounting for No
FEAR cases would require about $535,000 in start-up costs-mostly for labor
to modify computer systems. Officials from EOUSA did not provide an
estimate of their recurring costs, but said they would not be substantial
because the cost calculations required for per-case accounting would be
carried out electronically. Officials added, however, that many attorneys
may not favor tracking their time by case because it could lead to an
added emphasis on the number of cases being handled. Because the Civil
Division is already performing per-case accounting for certain types of
cases, and because this process could also be used for No FEAR cases,
officials said accounting for per-case costs for No FEAR cases would not
require substantial start-up costs. Officials from the Division said it
would incur an annual cost of about 2 work weeks to perform the
accounting. DOJ officials said that if appropriate features are included,
a DOJ-wide financial management information system planned for EOUSA and
the Civil Division by fiscal year 2008 could make it less costly for the
department to account for costs of No FEAR cases on a per-case basis than
the estimates they gave us. The costs that DOJ said it would incur to
conduct per-case accounting for No FEAR cases-there is no plan to do
so-are estimates and do not reflect the total cost to DOJ of billing and
seeking reimbursement for these cases.
Contents
Letter
Results in Brief
Background
DOJ Could Adopt Modifications to Its Existing Methods to Account
for Costs of Most No FEAR Cases by Case, Beginning in Fiscal Year 2006
Accounting for Costs of No FEAR Cases by Case Would Involve Start-Up Costs
and Additional Staff Time, but DOJ Officials Said Neither Cost Would Be
Substantial
Agency Comments 1 3 4
6
9 11
Appendixes
Appendix I: Scope of Laws Covered by the No FEAR Act 13
Appendix II: GAO Contact and Staff Acknowledgments 14
GAO Contact 14
Acknowledgments 14
Figure 1: Calculations Necessary for DOJ to
Figures Begin Accounting for Personnel Costs of No FEAR
Cases by Case for a Fiscal
Year 7
Figure 2: Calculations Necessary for DOJ to
Begin Accounting for
Nonpersonnel Costs of No FEAR Cases by Case for
a
Fiscal Year 8
Contents
Abbreviations
DOJ U.S. Department of Justice
EEOC Equal Employment Opportunity Commission
EOUSA Executive Office for U.S. Attorneys
FMIS financial management information system
HCFAC Health Care Fraud and Abuse Control
HHS U.S. Department of Health and Human Services
No FEAR Notification and Federal Employee Antidiscrimination and
Retaliation Act VICP National Vaccine Injury Compensation Program
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
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copyright holder may be necessary if you wish to reproduce this material
separately.
A
United States Government Accountability Office Washington, D.C. 20548
July 22, 2004
Congressional Recipients
Allegations of violations of employment antidiscrimination and
whistleblower protection laws against federal agencies can be resolved
administratively with agency attorneys representing the agency. When such
allegations end up in federal court, Department of Justice (DOJ) attorneys
take over representation of the agency, with assistance provided by agency
attorneys. DOJ attorneys within the Civil Division and the U.S. Attorneys'
Office, which handled the vast majority of the employment discrimination
cases in fiscal year 2002, generally handle these federal employment
cases.
Generally, DOJ's cost of conducting litigation on behalf of the federal
government is paid for out of its appropriations, although its client
agencies bear some costs when their attorneys assist DOJ. DOJ has
authority in some instances to cover its cost of conducting litigation out
of funds other than its appropriations, such as under the National Vaccine
Injury Compensation Program-a no-fault alternative to the traditional tort
system for resolving vaccine injury claims-and health care fraud and abuse
claims.1
The Notification and Federal Employee Antidiscrimination and Retaliation
Act of 2002 (No FEAR),2 which took effect October 1, 2003, was intended to
make federal agencies more accountable for their violations of employment
discrimination and whistleblower protection laws. The act attempts to
accomplish this by requiring agencies to reimburse the Judgment Fund3 for
employment discrimination and whistleblower settlements and judgments paid
on their behalf.4 No FEAR does not require agencies to reimburse DOJ for
costs incurred in defending them in cases
1For these types of cases, the department generally accounts for costs by
group of cases.
2Pub. L. No. 107-174, 116 Stat., 566 (May 15, 2002).
3The Judgment Fund is a permanent, indefinite appropriation administered
by the Department of the Treasury.
4We previously issued a report on the potential financial impact on the
Treasury Department of administering the No FEAR Act: U.S. General
Accounting Office, Judgment Fund: Treasury's Estimates of Claim Payment
Processing Costs under the No FEAR Act and Contract Disputes Act,
GAO-04-481 (Washington, D.C.: Apr. 28, 2004).
covered under the act. No FEAR does, however, require GAO to study and
report on how DOJ could account for the cost of representing agencies in
each case and what the burden of performing this accounting would be.
This report provides information on (1) the methods DOJ officials say they
could use to account for the personnel and nonpersonnel costs that DOJ
incurs in handling cases covered under No FEAR per case and how soon the
department expects to be able to do so and (2) how costly DOJ expects it
would be to account for these costs per case. DOJ defines personnel costs
as the total compensation-salaries, benefits, and awards-for attorneys and
paralegals;5 the nonpersonnel cost categories include all other costs,
such as service contracts, rent, communications, and utilities.6
Throughout this report we refer to attorneys and paralegals as "legal
professionals."
To address our objectives, we reviewed relevant laws and procedures and
interviewed officials in the Executive Office for U.S. Attorneys (EOUSA)
and the Civil Division. We obtained information from the Civil Division
and EOUSA, which serves as a liaison between DOJ in Washington, D.C., and
the U.S. Attorneys' offices across the country. In this capacity, EOUSA
provides operational and administrative support-including accounting- to
U.S. Attorneys. Neither office currently accounts for the per case cost of
defending cases covered under No FEAR. For this reason, each office
provided an example of the accounting methods it already uses for other
groups of cases and described to us what changes would be necessary to
begin accounting for costs of each case covered under No FEAR. EOUSA's
example is its accounting for the costs of health care fraud and abuse
control cases by group of cases; the Civil Division's example is its
accounting for vaccine injury compensation cases by case. Using recent
historical costs, EOUSA estimated the cost it would expect to incur in
dollars. The Civil Division estimated its cost in staff time and did not
convert this cost to dollars. These costs represent only estimates of how
the department could account for No FEAR cases by case-there is no plan to
do so-and do not reflect the total cost to DOJ of billing and seeking
5The Civil Division's estimate also includes the time that staff would
spend compiling data on No FEAR cases.
6Other nonpersonnel costs include: travel and transportation, mail
management, printing and reproduction, operation and maintenance of
facilities, medical care, operation and maintenance of equipment, use of
financial management system, personnel services, payroll services,
financial operations services, office automation, and equipment.
reimbursement for these cases. In commenting on a draft of this report,
DOJ officials noted that such a process could also involve negotiating
reimbursement agreements for individual cases, and they added that the
costs of doing so could be significant. Moreover, DOJ officials stressed
that the accounting methods discussed in this report are based on existing
circumstances and if a decision is made to perform accounting by case for
No FEAR cases, the methods chosen could differ.
We reviewed the supporting documentation that the offices provided to us
related to these estimates and interviewed officials of both offices about
them. On the basis of our assessment of DOJ's estimates, which are not
based on a formal, rigorous methodology, we determined that the data
provided by DOJ were sufficiently reliable for purposes of illustrating a
method that it could use for accounting by individual case.
We conducted our work from November 2002 through May 2004 in accordance
with generally accepted government auditing standards.
Results in Brief The two DOJ offices that handle cases covered under No
FEAR say they could begin accounting for their costs of each of these
cases by the beginning of fiscal year 2006 by changing their current
systems and procedures. EOUSA could account for the costs of each case
covered under No FEAR in fiscal year 2006 by adopting a modification of
the method it uses to account for health care fraud cases. Rather than
tracking the work they do on No FEAR cases by group in a manner similar to
how they track their work on health care fraud cases, legal professionals
within the U.S. Attorneys' Office would be required to track their time by
individual case. EOUSA would also need to revise its calculation of
nonpersonnel costs to allocate these costs to individual cases instead of
groups of cases, as EOUSA does now. The Civil Division could account for
its costs of No FEAR cases by case by the beginning of fiscal year 2005 in
the same way it currently conducts accounting by case for vaccine injury
compensation cases. This would include identifying personnel costs by
requiring Civil Division legal professionals to track their time for each
No FEAR case on which they work and allocating nonpersonnel costs to each
case using a formula based on the relative amount of time that legal
professionals work on No FEAR cases versus all other cases.
If DOJ were to begin accounting for costs it incurs in cases covered under
No FEAR by case, agency officials said such accounting would require both
start-up costs and recurring costs. For EOUSA, accounting by case for No
FEAR cases would require about $535,000 in start-up costs, mostly for
labor to modify computer systems. Although EOUSA officials did not provide
an estimate of recurring costs, they indicated that these costs would not
be substantial because the cost calculations required for accounting by
case would be carried out electronically. EOUSA told us that the office
might face resistance from many of its attorneys if they were required to
begin tracking their time by case. Such resistance would stem from the
culture in which the attorneys work. EOUSA explained that many U.S.
attorneys believe that tracking their time by case could lead to an added
emphasis on the number of cases being handled. Because the Civil Division
already tracks costs by case for certain groups of cases and could use
this method to account for each No FEAR case, the Civil Division said
there would be no significant start-up costs to begin accounting for costs
by case for No FEAR cases. Officials estimated an annual recurring cost of
about 2 work weeks would be incurred and that the additional staff time
spent on this task would compete with other responsibilities, such as
responding to requests for financial information. DOJ officials said that
if appropriate features are included, a DOJ-wide financial management
information system that should be available to the Civil Division and
EOUSA by fiscal year 2008 could make it less costly for the department to
account for costs of No FEAR cases by case than the estimates they gave
us. DOJ officials also said that a system that includes the ability to
calculate and integrate personnel and nonpersonnel case costs
electronically would enable both EOUSA and the Civil Division to account
for the costs of cases covered by No FEAR by case more efficiently.
DOJ provided technical and clarifying comments to a draft of this report,
which we incorporated. With these changes, DOJ generally agreed with the
facts presented in this report.
Background The types of cases covered by No FEAR include employment
discrimination cases brought under various federal antidiscrimination
statutes and certain prohibited personnel practice cases, including
whistleblower protection. (See app. I for further information on the scope
of laws covered by No FEAR.) No FEAR was intended to (1) make agencies
more accountable for their violations of certain employee protection laws,
(2) increase agencies' compliance with these laws, and (3) improve
congressional oversight. In addition to requiring agencies to repay the
Judgment Fund, No FEAR attempts to accomplish these goals by requiring
each agency to (1) provide employees written notification of, and training
on, their rights under the laws covered by the act; (2) submit
annual reports on its No FEAR cases to congressional entities, the Equal
Employment Opportunity Commission (EEOC), and the Attorney General; and
(3) post on Treasury's public Web site summary statistical data on
employment discrimination complaints filed involving the agency.
The Civil Division has responsibility for a broad range of civil
litigation, including defending the United States, its agencies, or
officers in suits challenging the constitutionality, lawfulness, or
propriety of presidential initiatives, federal statutes, and government
programs and actions. The Civil Division delegates to the U.S. Attorneys
in the states and U.S. territories the responsibility for handling a great
many of these cases, including most No FEAR cases. For example, U.S.
Attorneys handled the vast majority of employment discrimination cases in
fiscal year 2002. No FEAR cases that are not handled by U.S. Attorneys are
generally assigned to the appropriate part of the Civil Division.
DOJ has authority in certain instances to cover its costs of providing
litigation services out of funds other than its appropriations. For
example, the Health Care Fraud and Abuse Control (HCFAC) program
established by the Health Insurance Portability and Accountability Act of
19967 includes the authority for DOJ to cover its costs incurred in
engaging in HCFACrelated activities out of an account in the Federal
Hospital Insurance Trust Fund. HCFAC is jointly administered by the
Department of Health and Human Services (HHS), through its inspector
general, and DOJ. Officials from these agencies work with federal, state,
and local law enforcement to control fraud and abuse in health care, in
both public and private health plans. The federal government won or
negotiated more than $1.8 billion in judgments, settlements, and
administrative awards in health care fraud cases and proceedings in fiscal
year 2002, the latest year for which such figures are available. The U.S.
Attorneys prosecute civil and criminal HCFAC cases in U.S. district courts
and handle appeals in higher courts. The Civil Division is also involved
in health care fraud cases.
DOJ also has authority to cover its costs incurred out of funds other than
its appropriations in cases under the National Vaccine Injury Compensation
Program (VICP), which was established by the National Childhood Vaccine
Injury Act of 19868 and took effect October 1, 1988. HHS administers the
7Pub. L. No. 104-191, 110 Stat. 1936 (Aug. 21, 1996). 8Pub. L. No. 99-660,
Title III, 100 Stat. 3755-3784 (Nov. 14, 1986).
program. Under the program, an individual claiming a vaccine-related
injury or death can file a petition for compensation against the Secretary
of HHS with the U.S. Court of Federal Claims, which determines if the
individual is entitled to an award and, if so, the amount. DOJ defends HHS
in these proceedings. The Vaccine Injury Compensation Trust Fund pays the
awards and the federal government's costs of administering the program,
including the Civil Division's costs in representing HHS.9
DOJ Could Adopt Modifications to Its Existing Methods to Account for Costs of
Most No FEAR Cases by Case, Beginning in Fiscal Year 2006
The two DOJ offices that handle No FEAR cases said they could account for
costs by case by using a modification of the methods they now use to
account for HCFAC and vaccine injury compensation cases. EOUSA stated that
it could modify the electronic accounting it uses for the HCFAC group of
cases to account for each case covered by No FEAR by case, beginning in
fiscal year 2006. The Civil Division said that it could account for costs
per case of No FEAR cases by the beginning of fiscal year 2005 in the same
way it performs individual case accounting for VICP cases. The calculation
of personnel and nonpersonnel costs for both offices under the modified
scenario would be similar.
EOUSA Could Account for Each No FEAR Case by Adopting Modifications to Its
Current Accounting for Health Care Fraud Cases
Officials from EOUSA told us that they could account for the costs of each
case covered under No FEAR by using a modification of its current
accounting procedures for the HCFAC group of cases beginning in fiscal
year 2006. To calculate its cost for handling HCFAC cases as a group in a
fiscal year, EOUSA calculates personnel and nonpersonnel costs separately
and then adds them together. EOUSA officials told us that they determine
the personnel costs of the HCFAC group of cases in a particular fiscal
year in three steps: calculating the hourly compensation rates for each
legal professional for all cases, calculating each of these individual's
total compensation for work performed on HCFAC cases, and adding these
compensation amounts together.
EOUSA officials told us that they determine nonpersonnel costs for HCFAC
cases by allocating costs as a group based on the relative amount of time
that its legal professionals worked on HCFAC cases versus all other cases.
This calculation for a fiscal year is determined in three steps:
determining the percentage of case hours its legal professionals were paid
for work on
926 U.S.C. 9510(c)(1)(B).
HCFAC cases versus all other cases, applying this percentage to the cost
for each nonpersonnel category for the HCFAC group of cases, and adding up
the costs for each nonpersonnel cost category for HCFAC cases.
For EOUSA to begin accounting for personnel costs for each case covered
under No FEAR, legal professionals within the U.S. Attorneys' Office would
have to change how they track their time. Instead of tracking their time
by group of cases, as they do now, they would have to track their time by
individual case, so that officials could determine the personnel time
spent on each case. (See fig. 1.)
Figure 1: Calculations Necessary for DOJ to Begin Accounting for Personnel
Costs of No FEAR Cases by Case for a Fiscal Year
o Calculate hourly compensation rate for each legal professional.a
The legal professional's total annual compensationb Total hours paid to the
legal professionalc
=
The legal
professional's hourly
compensation
rate
o Calculate each legal professional's compensation for work performed on
a No FEAR case.
The legal professional's hourly compensation rate
x
Number of hours the legal professional was paid for work on the No FEAR case
=
The legal professional's compensation for hours paid for work on the No FEAR
case
o Calculate the personnel costs for the No FEAR case.
Sum of all legal professionals' Total personnel compensation for hours
paid for = costs for the work on the No FEAR case No FEAR case
Source: GAO.
aLegal professionals include attorneys and paralegals working on a case.
bTotal compensation includes salaries, benefits, and awards.
cAttorneys are paid for a maximum of 40 hours per week.
EOUSA officials said that to begin accounting for the nonpersonnel costs
of each case covered under No FEAR would require a departure from its
current accounting. EOUSA would need to calculate the nonpersonnel cost
for each No FEAR case based on the relative amount of personnel time spent
on that case versus all cases (see fig. 2). Cases requiring more personnel
time would be allocated proportionately more nonpersonnel costs than cases
requiring less personnel time.
Figure 2: Calculations Necessary for DOJ to Begin Accounting for
Nonpersonnel Costs of No FEAR Cases by Case for a Fiscal Year
o Calculate the percentage of case hours legal professionalsa were paid
for work on a No FEAR case.
Number of hours legal professionals were paid for work on the No FEAR case
Number of hours legal professionals were paid for work on all cases
=
Percentage of hours legal professionals were paid for work on the No FEAR case
o Calculate the cost for each nonpersonnel categoryb for the No FEAR
case.
Percentage of hours legal professionals were paid for work on the No FEAR case
Cost allocated to a nonpersonnel category for all cases
Cost allocated to the nonpersonnel category for the No FEAR case
x=
o Calculate the total nonpersonnel costs for the No FEAR case.
Sum of costs allocated to each Total nonpersonnel nonpersonnel cost
category for = costs allocated to the No FEAR case the No FEAR case
Source: GAO.
aLegal professionals include attorneys and paralegals working on a case.
bExamples of nonpersonnel cost categories are GSA rent, service contracts,
and printing.
EOUSA officials said that to perform these calculations, they would need
to modify EOUSA's electronic systems for tracking personnel time and the
legal activities to which that time is devoted. EOUSA estimates it could
do this by the beginning of fiscal year 2006.
The Civil Division Could Use Current Methods to Account for No FEAR Cases by
Case
Civil Division officials told us that they could account for costs of
cases covered by No FEAR by case by the beginning of fiscal year 2005 in
the same way they already account for the individual costs of VICP cases.
For each No FEAR case, personnel costs could be calculated by linking data
from the case management system, which tracks the time legal professionals
worked by case and group of cases, with payroll data. Other than travel
costs, which can be tracked by case, nonpersonnel costs for an individual
case are not tracked by the Civil Division; these costs could be allocated
using a formula based on the relative amount of time that legal
professionals work on No FEAR cases versus all other cases.
Accounting for Costs of No FEAR Cases by Case Would Involve Start-Up Costs and
Additional Staff Time, but DOJ Officials Said Neither Cost Would Be
Substantial
If DOJ were to begin accounting for cases covered under No FEAR by case,
EOUSA would incur start-up costs, but no substantial recurring costs,
while the Civil Division would incur a recurring cost, but no substantial
start-up costs. DOJ officials also said that an electronic financial
management information system (FMIS) that the department is planning for
use throughout DOJ beginning by fiscal year 2008 could make it easier for
both offices to account for costs of these cases by case because it would
track nonpersonnel costs.
Neither EOUSA nor the Civil Division Anticipates Substantial Costs
EOUSA estimates that accounting for the individual costs of cases covered
under No FEAR would require about $535,000 in start-up costs-about
$500,000 to modify its electronic case management system, which provides
information to manage cases and track personnel costs, and about $35,000
for administrative oversight. The $500,000 estimate consists of labor
costs of 85 work weeks for workers with differing skill levels and is
based on EOUSA's knowledge of system architectures and estimates of the
cost of comparable modifications. Once these changes were made, EOUSA
officials told us that individual case accounting would be carried out
electronically and would not involve substantial recurring costs, although
the officials did not provide an estimate of these costs.
EOUSA officials noted that the office might face resistance from many of
its attorneys if they were required to begin tracking their time by case.
This resistance would stem from the culture within which the attorneys
work. EOUSA officials explained that U.S. Attorneys believe that tracking
their time by case could lead to an added emphasis on the number of cases
being handled.
The Civil Division estimated that it would incur 2 work weeks of recurring
costs to produce cost reports required for accounting by case of No FEAR
cases. The division would not have significant start-up costs because it
is already accounting for certain groups of cases by case. Attorneys in
the division's litigating branches would have to begin flagging No FEAR
cases with a special code that would then be entered into the division's
case management system. The system could then track the number of hours
that attorneys and paralegals reported working on each No FEAR case. The
Civil Division's accounting staff would retrieve these data. The division
did express concern that this work might compete with other staff
responsibilities, such as responding to requests for financial
information. Civil Division officials also noted that additional work
would be involved if it were to start such accounting after the beginning
of a fiscal year. In this scenario, the division would have to identify
the No FEAR cases, identify personnel costs for each case, use a formula
for estimating the nonpersonnel costs for each case based on the relative
amount of time that legal professionals work on No FEAR cases versus all
other cases, and use electronic spreadsheets to apply this formula.
A New Financial Management Information System Could Make It Easier for DOJ
to Account for Costs of No FEAR Cases by Case
DOJ has recently started planning an electronic FMIS that is expected to
be available departmentwide beginning in fiscal year 2008, although
certain agencies within the department may be able to use the system
before then. DOJ officials said that a system that includes features such
as the ability to calculate and integrate personnel and nonpersonnel case
costs electronically could make it less costly to account for the costs of
individual cases covered by No FEAR than the estimates they gave us. DOJ
officials based their statement on the expectation that FMIS's ability to
track nonpersonnel costs will make it possible to integrate data from its
case management and financial management systems to track all costs
directly.
Agency Comments On June 17, 2004, we provided a draft of this report to
DOJ for review and comment. DOJ e-mailed clarifying and technical
comments, which we incorporated. With these changes, DOJ officials
indicated general agreement with the report.
We will send copies of this report to interested congressional committees;
the Attorney General; Assistant Attorney General, Civil Division; and the
EOUSA Director. We will also make copies available to others upon request.
In addition, the report will be available at no charge on GAO's Web site
at http://www.gao.gov. If you or your staff have questions about this
report, please call me at (202) 512-9490 or Belva Martin, Assistant
Director, on (202) 512-4285. Key contributors to this report are listed in
appendix II.
George H. Stalcup Director, Strategic Issues
Congressional Recipients
The Honorable Ted Stevens
President Pro Tempore
United States Senate
The Honorable J. Dennis Hastert
Speaker of the House
House of Representatives
The Honorable Susan M. Collins
Chairman
The Honorable Joseph I. Lieberman
Ranking Minority Member
Committee on Governmental Affairs
United States Senate
The Honorable F. James Sensenbrenner, Jr.
Chairman
The Honorable John Conyers, Jr.
Ranking Minority Member
Committee on the Judiciary
House of Representatives
The Honorable Jo Ann Davis
Chairwoman
The Honorable Danny K. Davis
Ranking Minority Member
Subcommittee on Civil Service
and Agency Organization Committee on Government Reform House of
Representatives
Appendix I
Scope of Laws Covered by the No FEAR Act
No FEAR cases include cases brought in federal district court by job
applicants and current or former federal employees under any of the
provisions of the following laws:1 (1) section 717 of the Civil Rights Act
of 1964, as amended,2 which prohibits discrimination on the basis of race,
color, religion, sex, or national origin; (2) sections 12 and 15 of the
Age Discrimination in Employment Act of 1967,3 which prohibits
discrimination on the basis of age; (3) the Equal Pay Act of 1963,4 which
prohibits sexbased wage discrimination, and (4) section 501 of the
Rehabilitation Act of 1973,5 which prohibits discrimination on the basis
of disability. Prior to filing in federal court, individuals alleging
violations of these discrimination laws typically are required to exhaust
administrative remedies.
No FEAR cases also include cases appealed from the Merit Systems
Protection Board (MSPB)6 to federal court, such as the U.S. Federal
Circuit Court of Appeals, alleging violation of certain prohibited
personnel practices-most notably retaliation for whistleblowing.7
Agency attorneys are responsible for representing their agency while a
matter is at the administrative stage, either before EEOC or MSPB.
However, once a matter is filed in district court or appealed to the U.S.
Federal Circuit Court of Appeals, DOJ attorneys generally take over
representation of the agency, with assistance provided by counsel from the
client agency.
1No FEAR cases are identified under section 201 of the act. Section
201(a)(2) permits the identification of additional cases through
implementing regulations.
242 U.S.C. S: 2000e-16.
329 U.S.C. S: 631, 633a.
429 U.S.C. S: 206(d).
529 U.S.C. S: 791.
6MSPB is an independent, quasijudicial agency in the executive branch.
7Section 201(c)(1).
Appendix II
GAO Contact and Staff Acknowledgments
GAO Contact Belva Martin, (202) 512-4285
Acknowledgments Karin Fangman, Amy Friedlander, Domingo Nieves, and
Michael Rose also made key contributions to this report.
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