**OFFICE OF THE SOLICITOR GENERAL**

**FY 2008 PRESIDENT'S BUDGET SUBMISSION**

**January 30, 2007**

# Table of Contents

Page No.

**I. Overview 1**

**II. Summary of Program Changes N/A**

**III. Appropriations Language and Analysis of Appropriations Language
\***

IV\. Decision Unit Justification

A. Federal Appellate Activity 3

1\. Program Description

2\. Performance Tables

3\. Performance, Resources, and Strategies

a\. Performance Plan and Report for Outcomes

b\. Strategies to Accomplish Outcomes

c\. Results of Program Assessment Rating Tool (PART) Reviews

V. Exhibits

A.  Organizational Chart

> B. Summary of Requirements
>
> C. Program Increases by Decision Unit N/A

D.  Resources by DOJ Strategic Goal/Objective

E.  Justification for Base Adjustments

F.  Crosswalk of 2006 Availability

G.  Crosswalk of 2007 Availability

H.  Summary of Reimbursable Resources N/A

I.  Detail of Permanent Positions by Category

J.  Financial Analysis of Program Increases/Offsets N/A

K.  Summary of Requirements by Grade

L.  Summary of Requirements by Object Class

> M. Status of Congressionally Requested Studies, Reports, and
> Evaluations..... N/A

# 

\* Please refer to the General Legal Activities Consolidated Exhibits.

I. Overview for the Office of the Solicitor General

A. Introduction

In FY 2008, the Office of the Solicitor General (OSG) requests a total
of \$10,085,000, 48 positions, including 22 attorney positions, and 49
FTE to meet its mission. This request includes only base funding since
OSG is not requesting any program increases. Beginning in FY 2007,
electronic copies of the Department of Justice's congressional budget
justifications and Capital Asset Plan and Business Case exhibits can be
viewed or downloaded from the Internet address:

[http://www.usdoj.gov/jmd/2008justification/]{.underline}."

B. Mission/Background

Mission: The major function of the Solicitor General's Office is to
conduct all litigation on behalf of the United States in the Supreme
Court of the United States and to supervise the handling of litigation
in the federal appellate courts. The original Statutory Authorization
Act of June 22, 1870, states: "There shall be in the Department of
Justice an officer learned in the law, to assist the Attorney General in
the performance of his duties to be called the Solicitor General." As
stated in 28 CFR 0.20, the general functions of the Office are as
follows: (1) conducting or assigning and supervising all Supreme Court
cases, including appeals, petitions for and in opposition to certiorari,
briefs and arguments; (2) determining whether, and to what extent,
appeals will be taken by the government to all appellate courts
(including petitions for rehearing en banc and petitions to such courts
for the issuance of extraordinary writs); (3) determining whether a
brief amicus curiae will be filed by the government, or whether the
government will intervene, in any appellate court, or in any trial court
in which the constitutionality of an Act of Congress is challenged; and
(4) assisting the Attorney General and the Deputy Attorney General in
the development of broad Department program policy.

No programs within OSG have been selected for review under the Program
Assessments Rating Tool (PART) process.

**C. Challenges**

Although OSG's mission and strategic objectives will not change in FY
2008, the challenges it faces may. OSG has recently faced new
expectations unprecedented in its history, and was called upon to assume
added responsibilities. For example, the Solicitor General was asked by
the Attorney General and the White House to assume litigation
responsibilities in the lower courts with regard to challenges to the
United States government's detention at Guantanamo Bay, Cuba, and at the
Naval Brig in South Carolina of enemy combatants captured in connection
with the ongoing war on terror. Since September 11th, lawyers from OSG,
therefore, appear in lower courts more often. Lawyers from OSG have
appeared in the D.C., 2nd, 4th, 7th, and 9th Circuits in important
terrorism related cases. These cases are handled by a team of government
lawyers headed by the Solicitor General and have placed a significant
drain on the limited resources of the Office.

OSG supports the strategic plan of the Department of Justice in the
following way.

[DOJ Strategic Goal 2: Enforce Federal Laws and Represent the Rights and
Interests of the American People (\$10,085,000)]{.underline}

-   Objective 2.5: Enforce federal statutes, uphold the rule of law, and
    vigorously represent the interests of the United States in all
    matters for which the Department of Justice has jurisdiction.

D. Full Program Costs

OSG only has one program---Federal Appellate Activity. Its program costs
consist almost entirely of fixed costs, such as, personnel and
personnel-related costs (71%), GSA rent (17%), and printing (1.5%).

E. Performance Challenges

**[External Challenges]{.underline}** The Office of the Solicitor
General does not initiate any programs, but, it is required to handle
all appropriate Supreme Court cases and requests for appeal, amicus, or
intervention authorization. In the vast majority of cases filed in the
Supreme Court in which the United States is a party, a petition is filed
by an adverse party and the United States is obliged to respond.
Additionally, the Supreme Court formally requests the Solicitor General
to express the views of the United States. The number of cases in which
the Solicitor General petitions the Supreme Court for review, acquiesces
in a petition for a writ of certiorari filed by an adverse party, or
participates as an intervenor or as amicus curiae is governed
exclusively by the Solicitor General's determination that it is in the
best interest of the United States to do so. Further, such activity may
vary widely from year to year, which limits the Office's ability to plan
its workload and performance activity, since the Office has no control
over this activity. For example, in FY 2003 the Supreme Court asked the
Solicitor General for his views in an unusually high number of cases
(24) in which the government was not already involved, while they
requested his views for 15 cases in FY 2004 and 13 times in FY 2005.
Responses are required, and generally take considerable time to
research, analyze and respond.

**[Internal Challenges]{.underline}** The Office's personnel resources
have not increased in several years. Due to the size of the Office, when
positions become vacant it places undue burden on the entire staff to
keep the work flowing. When attorneys leave and before replacements
arrive, the work must be assigned to another attorney who is already
overburdened. This slows down the process and, in turn, affects all
units/sections in the office, i.e., Paralegal Unit, Desktop Publishing
Unit, and Case Management Section.

**IV. Decision Unit Justification**

**A. Federal Appellate Activity**

  ------------------------------------ --------- --------- ---------------
  Federal Appellate Activity TOTAL     Perm.     FTE       Amount
                                       Pos.                

  2006 Enacted w/ Rescissions and      48        49        \$8,292,000
  Supplementals                                            

  2007 Estimate                        48        49        9,237,000

  Adjustments to Base and Technical                        848,000
  Adjustments                                              

  2008 Current Services                48        49        10,085,000

  2008 Program Increases                                   0

  2008 Offsets                                             0

  2008 Request                         48        49        10,085,000

  Total Change 2007-2008                                   848
  ------------------------------------ --------- --------- ---------------

1\. Program Description

The major function of the Solicitor General's Office is to supervise the
handling of government litigation in the Supreme Court of the United
States and in Federal appellate courts, to determine whether an amicus
curiae brief will be filed by the government, and to approve
intervention by the United States to defend the constitutionality of
acts of Congress.

The original Statutory Authorization Act of June 22, 1870, states:
"There shall be in the Department of Justice an officer learned in the
law, to assist the Attorney General in the performance of his duties to
be called the Solicitor General." As stated in 28 CFR 0.20, the general
functions of the Office are as follows: (1) conducting or assigning and
supervising all Supreme Court cases, including appeals, petitions for
and in opposition to certiorari, briefs and arguments; (2) determining
whether, and to what extent, appeals will be taken by the government to
all appellate courts (including petitions for rehearing en banc and
petitions to such courts for the issuance of extraordinary writs); (3)
determining whether a brief amicus curiae will be filed by the
government, or whether the government will intervene, in any appellate
court, or in any trial court in which the constitutionality of an Act of
Congress is challenged; and (4) assisting the Attorney General and the
Deputy Attorney General in the development of broad Department program
policy.

This Office does not initiate any programs or have control of the
Supreme Court litigations it is required to conduct or the number of
appeal and amicus authorizations it handles. Amicus filings often
involve important constitutional or Federal statutory questions that
will fundamentally affect the administration and enforcement of major
Federal programs. Examples in recent Terms include cases presenting
significant issues of criminal procedure (affecting the government's
ability to succeed in prosecutions), as well as important issues under
the civil rights laws (such as the Voting Rights Act and the Americans
with Disabilities Act), the environmental laws (such as the Clean Water
Act), and many others.

The Office had an increase in the number of requests received by the
Solicitor General in FY 2005 in its workload measure regarding appeal
authorizations, or for intervention or participation in state or federal
litigation. During the 2004 Term of the Supreme Court which parallels FY
2005 (July 1, 2004 through June 30, 2005), the Office had 497 Supreme
Court matters pending at the beginning of the Term and received an
additional 3,876 Supreme Court matters, terminating approximately 3,953
of these matters, leaving a balance of 420 matters pending at the end of
the Term. The Office also completed approximately 857 appellate
determinations, 601 certiorari determinations, 732 miscellaneous
recommendations.[^1] Appellate determinations include both appeal
authorizations and no appeal decisions. Certiorari determinations
include certiorari authorizations, no certiorari decisions, direct
appeal authorizations and no direct appeal decisions. Miscellaneous
decisions include amicus participation, mandamus, rehearing, settlement,
bails, stays, etc. The attorneys in the Office participated in 65 oral
arguments before the Supreme Court.[^2]

During FY 2006 (the 2005 Term of the Supreme Court running June 29, 2005
through June 30, 2006), the Office had 420 Supreme Court matters pending
at the beginning of the Term, received an additional 4,125 Supreme Court
matters, terminated 4,062 of these matters, leaving a balance of 483
matters pending at the end of the Term. The Office also completed 991
appellate determinations, 1,017 certiorari determinations, 649
miscellaneous recommendations, and participated in 61 oral arguments
before the Supreme Court. During FY 2007 (the 2006 Term of the Supreme
Court running July 1, 2006 through June 30, 2007), the Office
anticipates having approximately 483 Supreme Court matters pending at
the beginning of the Term, receiving an additional 3,800 Supreme Court
matters, terminating approximately 3,876 of these matters, leaving a
balance of 407 matters pending at the end of the Term. The Office also
anticipates completing approximately 860 appellate determinations, 601
certiorari determinations, 732 miscellaneous recommendations, and
participating in approximately 65 oral arguments before the Supreme
Court. Finally, during FY 2008 (the 2007 Term of the Supreme Court
running July 1, 2007 through June 30, 2008), the Office anticipates
having approximately 407 Supreme Court matters pending at the beginning
of the Term, receiving an additional 3,876 Supreme Court matters,
terminating approximately 3,876 of these matters, leaving a balance of
407 matters pending at the end of the Term. The Office also anticipates
completing approximately 860 appellate determinations, 601 certiorari
determinations, 732 miscellaneous recommendations, and participating in
approximately 65 oral arguments before the Supreme Court.

-   ![](media/image1.wmf)

**A. Definitions of Terms or Explanations for Indicators:**

**Footnote 1**: Because the work of the Office is primarily governed by
the Supreme Court's schedule, the Office tracks its workload by Supreme
Court Term. Fiscal years roughly correspond to Supreme Court Terms,
which run from July of the Term year through June of the next year.
Reference to fiscal years in this document will reflect information for
the applicable Supreme Court Term. Accordingly, FY 2006 corresponds with
the 2005 Supreme Court Term, FY 2007 corresponds with the 2006 Supreme
Court Term, and so on. The Office of the Solicitor General handles
Supreme Court matters on an ongoing basis. As a result, some matters
will overlap from one fiscal year to the next, and they are included in
the data for the term in which they most appropriately fit.

**Footnote 2:** Includes requests for authorizations as well as
recommendations against appeal, intervention, or participation amicus
curiae. This category does not include miscellaneous requests, such as
requests for authorization of settlement, for stays, for mandamus, etc.

**Footnote 3:** Includes requests for authorization to petition for
rehearing en banc.

**B. Data Validation and Verification.**

The Office of the Solicitor General handles all aspects of the law--not
just civil matters. The Office uses the Automated Docket System (ADS) to
track the matters handled by its attorneys. Data are keyed by the Case
Management staff. For Supreme Court matters, all data are verified by
the Supervisor or her Assistant, and checked against Supreme Court
Records. The Case Management System Supervisor executes daily
statistical reports to ensure accurate tracking of both Supreme Court
matters and requests for authorization to appeal, intervene, or
participate amicus curiae. Additionally, once a week the Case Management
System Supervisor distributes statistical reports on all Office matters
to each attorney in the Office. The attorneys then review the reports to
ensure accurate tracking of the matters for which they are responsible.

**Issues Affecting OSG's Program Performance.**

The Office of the Solicitor General does not initiate any programs or
have control over the number of Supreme Court cases it is required to
handle or the number of requests for appeal, amicus, or intervention
authorizations it receives. In the vast majority of cases filed in the
Supreme Court in which the United States is a party, a petition is filed
by an adverse party and the United States is obliged to respond.
Additionally, the Office does not control the number of cases in which
the Supreme Court formally requests the Solicitor General to express the
views of the United States. The number of cases in which the Solicitor
General petitions the Supreme Court for review, acquiesces in a petition
for a writ of certiorari filed by an adverse party, or participates as
an intervenor or as amicus curiae is governed exclusively by the
Solicitor General\'s determination that it is in the best interests of
the United States to do so. Thus, the Solicitor General participates in
100% of the cases in which the United States is required to participate,
as well as 100% of the cases in which the Solicitor General has
determined that the interests of the United States require
participation.

![](media/image2.wmf)

2\. Performance, Resources, and Strategies

The Office of the Solicitor General's only decision unit---Federal
Appellate Activity---contributes to the Department's Strategic Goal 2:
Enforce Federal Laws and Represent the Rights and Interests of the
American People. The decision unit's total resources fall under the
Department's Strategic Objective 2.5 -- Enforce federal statutes, uphold
the rule of law, and vigorously represent the interests of the United
States in all matters for which the Department of Justice has
jurisdiction.

#### a. Performance Plan and Report for Outcomes {#a.-performance-plan-and-report-for-outcomes .unnumbered}

The first performance measure is: Cases in which the Solicitor General
participated. During the 2004 (FY 2005) Supreme Court Term (July 1, 2004
through June 30, 2005), the Office participated in 3,345 cases, and
participated in 4,000 cases during the 2005 (FY 2006) Supreme Court
Term.

The second performance measure is: Requests to which the Solicitor
General responded. During the 2004 (FY 2005) Supreme Court Term (July 1,
2004 through June 30, 2005), the Office responded to 2,145 requests, and
responded to 2,389 requests during the 2005 Supreme Court Term. Because
the work of the Office is primarily governed by the Supreme Court's
schedule, the Office tracks its workload by Supreme Court Term. Fiscal
years roughly correspond to Supreme Court Terms, which run from July of
the Term year through June of the next year.

OSG participated in slightly fewer cases than anticipated, and responded
to more requests than anticipated. However, unlike many of the
Department of Justice components, the Office of the Solicitor General
does not initiate any programs or have control over the number of
Supreme court cases it is required to handle or the number of requests
for appeal, amicus, or intervention authorizations it receives. In the
vast majority of cases filed in the Supreme Court in which the United
States is a party, a petition is filed by an adverse party and the
United States is obliged to respond. Additionally, the Office does not
control the number of cases in which the Supreme Court formally requests
the Solicitor General to express the views of the United States. Thus,
performance measures may vary widely from year to year which increases
the likelihood that OSG's actual measures will also vary widely from
projected goals. The number of cases in which the Solicitor General
petitions the Supreme Court for review, acquiesces in a petition for a
writ of certiorari filed by an adverse party, or participates as an
intervenor or as amicus curiae is governed exclusively by the Solicitor
General's determination that it is in the best interests of the United
States to do so.

### b. Strategies to Accomplish Outcomes

To fulfill the Office of the Solicitor General's critical mission of
representing the interests of the United States in the Supreme Court,
the Office will devote all resources necessary to prevail in the Supreme
Court. For FY 2008, OSG is requesting base funding of 48 positions, 49
workyear and \$10,085,000 to accomplish its goals.

OSG has experienced an increase in several Court related activities. In
addition, the OSG is facing new expectations unprecedented in its
history and has been called upon to assume added responsibilities. For
example, the Solicitor General was asked by the Attorney General and the
White House to assume litigation responsibilities in the lower courts
with regard to whether the United States government's detention at
Guantanamo Bay, Cuba, of al Qaida and Taliban forces captured during the
military operations in Afghanistan may be challenged by a writ of habeas
corpus in a civilian U.S. court, and, if so, whether their detention
violates the United States Constitution, treaties, or other principles
of international law. Since September 11th, lawyers from OSG appear in
lower courts more often. Lawyers from OSG have appeared in the D.C. 2nd,
4th, 7th, and 9th Circuits in important terrorism related cases. These
cases are handled by a team of government lawyers headed by the
Solicitor General and require a significant commitment of attorney and
administrative staff resources, which add to the Office's workload.
While it might be safe to assume OSG will continue its involvement in
similar cases because of the ever changing environment related to world
terrorist activities, it is too early to project a trend which can be
measured with any degree of confidence.

The Office is reviewing its operations and processes to increase overall
efficiency and reduce costs. The Office has made a number of changes and
will continue to make additional efforts when appropriate.

This strategy will better enable the OSG and the Department to meet its
mission and goals under DOJ Strategic Goal 2.5: Enforce federal
statutes, uphold the rule of law, and vigorously represent the interests
of the United States in all matters for which the Department has
jurisdiction.

c\. Results of Program Assessment Rating Tool (PART) Reviews

No programs in this budget account have been subject to a PART Review.

**VII. EXHIBITS**

[^1]: The figures on determinations and recommendations provided in this
    document do not directly correspond with the figures provided on the
    Office's Workload Measurement Tables. Our Workload Measurement
    Tables track our workload by case; these figures track our workload
    by determination. Often, the Office of the Solicitor General will
    receive a request for authorization that includes more than one
    potential outcome: for example, the Solicitor General may receive a
    request for authorization for rehearing en banc, or, in the
    alternative, for a petition for a writ of certiorari. In that case,
    the Solicitor General may make two determinations; (1) no rehearing
    and (2) no certiorari. Our Workload Measurement Tables reflect that
    as a single request; here, we have provided a separate accounting
    for each determination. Additionally, the figures provided in this
    document under "miscellaneous requests" include requests for
    authorization of settlement, for stays, and for mandamus, while the
    figures on the Performance Measurement Tables do not include such
    requests.

[^2]: The figure for oral argument participation reflects the number of
    oral arguments the Office presented to the Supreme Court as a party,
    amicus curiae, or intervenor; it does not reflect the total number
    of underlying cases for each of those arguments.