# Civil Division

**United States Department of Justice**

**FY 2009 Performance Budget**

**Congressional Submission**

**February 2008**

# 

# Table of Contents 

Page No.

**I. Overview 1**

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

III\. Appropriations Language and Analysis of Appropriations Language 7

IV\. Decision Unit Justification

A. Legal Representation 9

1\. Program Description

2\. Performance Tables

3\. Performance, Resources, and Strategies

**V. E-Gov Initiatives 35**

VI\. 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 2007 Availability

G.  Crosswalk of 2008 Availability

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H.  Summary of Reimbursable Resources

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

**Civil Division: Overview**

The Civil Division's role is two-fold in that it must represent some 200
federal agencies and Congress while maintaining uniformity in government
policy. For any particular case, Civil must provide the best possible
representation to the client agency involved. This responsibility must
be balanced with the need to represent the government as a whole and to
ensure lasting precedents favorable to the United States.

Generally, the Division's litigation falls into one of the following
categories:

-   Cases that involve national policies:

    -   The Child Online Protection Act was signed into law in 1998 and
        was intended to protect minors from sexually explicit material
        on the Internet. This law has drawn First Amendment legal
        challenges in court.

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-   Cases that are so massive and span so many years that they would
    overwhelm the resources and infrastructure of any individual field
    office:

    -   The United States Army Corps of Engineers (the Corps) has
        received nearly 490,000 administrative claims arising from the
        damages caused by Hurricane Katrina. The ensuing litigation will
        be the largest group of cases ever handled by the Civil Division
        and could span many years, possibly even decades.

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-   Cases filed in national or foreign courts:

    -   Nuclear utilities filed 66 claims against the Department of
        Energy (DOE) in the United States Court of Federal Claims
        alleging breach of contract for DOE's failure to begin accepting
        spent nuclear fuel in 1998.

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-   Cases that cross multiple jurisdictions:

    -   Pharmaceutical fraud cases often involve overlapping claims,
        defendants, and witnesses. The Civil Division plays a critical
        role in ensuring that investigations and litigation are properly
        coordinated among federal and state entities.

The Civil Division workload exceeds 50,000 cases and administrative
claims annually. The overwhelming majority -- about 89 percent -- of
these cases are defensive. Each year, thousands of lawsuits are filed
against the government as a result of its policies, laws, and
involvement in commercial activities, domestic and foreign operations
and entitlement programs, as well as law enforcement initiatives,
military actions, and counterterrorism efforts. Civil defeats billions
of dollars in unmeritorious claims every year. The Division also brings
suits on behalf of the United States, primarily to recoup money lost
through fraud, loan defaults, and the abuse of federal funds. Annually,
millions, and often billions, of dollars are returned to the treasury,
Medicare, and other entitlement programs as a result of Civil's
affirmative litigation efforts.

The Civil Division is also responsible for the administration of two
compensation programs created by the National Childhood Vaccine Injury
Act of 1986 and the Radiation Exposure Compensation Act (RECA) of 1990.

Finally, Civil Division attorneys play a significant leadership role
within the Department of Justice (DOJ) and the Executive Branch. The
Division consults with and advises the United States Attorneys, other
DOJ components, and client agencies to ensure that the government's
litigation position is unified, consistent, and successful. With respect
to client agencies, Civil Division attorneys work closely with agencies'
general counsels to head off potential litigation and prevent
unfavorable outcomes should cases proceed in court.

It is possible for the public to better understand the responsibilities
and goals of the Civil Division. Electronic copies of DOJ's
Congressional Budget Justifications and Capital Asset Plan and Business
Case exhibits can be viewed or downloaded from the Internet using the
Internet address: <http://www.usdoj.gov/jmd/2009justification>.

**Full Program Costs**

Funds for the Legal Representation Decision Unit, the Civil Division's
only decision unit, are devoted almost entirely to front-line litigation
in observance of the management initiatives contained in the DOJ
Strategic Plan (2007-2012). Of the Division's roughly 1,200 employees,
the vast majority are assigned to the six litigating branches.

In FY 2007, \$383,200,000 was available to the Division, exclusive of
the RECA Trust Fund (see Civil's RECA Trust Fund Budget). Fifty-four
percent of this funding came from the GLA appropriation while forty-six
percent was provided through DOJ allotments and reimbursements. The
table on the following page displays a list of the Civil Division's
funding sources, including appropriations and reimbursements.

  ----------------------------- ----------- ----------- ----------- ----------- ----------- -----------
  **Number range CHAPTERCivil                                                               
  Division Funding Sources                                                                  
  (Dollars in Millions)**                                                                   

  **Appropriations**            **2002**    **2003**    **2004**    **2005**    **2006**    **2007**

  **Number range CHAPTERLegal   162.5       167.5       174.4       174.9       192.2       208.3
  Representation (GLA)**                                                                    

  Immigration & Katrina         0           0           0           0           9.6         0
  Emergency Supplemental                                                                    

  Number range CHAPTERRECA -    1.9         0           0           0           0           0
  Admin. (Became part of Legal                                                              
  Representation in FY 2003)                                                                

  **Number range                **164.4**   **167.5**   **174.4**   **174.9**   **201.8**   **208.3**
  CHAPTERSubtotal**                                                                         

  Number range                                                                              
  CHAPTER**Reimbursements:**                                                                

  Number range CHAPTERFDIC -    63.3        32.3        38.5        30.2        18.3        17.5
  Winstar                                                                                   

  Number range CHAPTERVaccine   4.0         4.0         4.0         6.3         6.3         6.3
  Compensation Program                                                                      

  Number range CHAPTERThree     32.8        15.7        34.8        31.7        10.0        16.2
  Percent - Debt Collection                                                                 

  Number range CHAPTERHealth    21.0        14.4        14.5        15.5        15.3        15.9
  Care Fraud Abuse Control                                                                  

  Number range CHAPTEROther     32.7        59.0        36.9        75.4        36.3        44.2
  Reimbursements                                                                            

  **Number range                **153.8**   **125.4**   **128.7**   **159.1**   **86.2**    **100.1**
  CHAPTERSubtotal**                                                                         

  Number range CHAPTER**DOJ                                                                 
  Accounts:**                                                                               

  Number range CHAPTERWorking   0           23.4        0           0           0           0
  Capital Fund                                                                              

  AFF & Super Surplus           0           0           0           0           .8          .8

  Number range CHAPTERExpert    38.1        38.0        46.6        45.1        49.1        54.0
  Witnesses (FEW)                                                                           

  Number range CHAPTERPrivate   7.0         7.2         9.0         12.3        15.3        13.0
  Counsel (FEW)                                                                             

  Number range CHAPTERALS No    0           0           2.5         3.3         15.6        7.0
  Year                                                                                      

  Number range CHAPTERVCR Carry 2.0         2.0         0.2         0           0           0
  Forward                                                                                   

  **Number range                **47.1**    **70.6**    **58.3**    **60.7**    **80.8**    **74.8**
  CHAPTERSubtotal**                                                                         

  Number range CHAPTER**TOTAL - **365.3**   **363.5**   **361.4**   **394.7**   **368.8**   **383.2**
  ALL SOURCES**                                                                             
  ----------------------------- ----------- ----------- ----------- ----------- ----------- -----------

The FY 2008 Omnibus Appropriation provided \$240,114,000 for the Civil
Division and \$10,000,000 in Emergency Designation Funds for the Office
of Immigration Litigation. For FY 2009, the Division requests 1,338
positions (957 attorneys), 1,332 FTE, and \$270,431,000 to meet its
mission and performance goals.

**Issues, Strategies, and Outcomes**

Between FY 2006 and FY 2009, the Civil Division's workload is expected
to grow from approximately 53,532 to 60,219 cases -- an increase of 13
percent -- primarily as a result of continued growth in immigration
cases and administrative tort claims. However, this number belies the
true extent of the workload, as the Division is handling over 489,000
administrative claims that have been filed with the Corps seeking
damages associated with Hurricane Katrina. These administrative claims,
while not included in the Division's total numbers, are very
time-consuming.

**External Challenges:**

Because the Civil Division's workload is mostly defensive, it cannot
control the number of cases filed, the timing of discovery, the size of
evidentiary collections, the time span of litigation, or the scheduling
of trials. The type, volume, and size of the cases are determined by
several exogenous factors:

-   **Military Actions**

-   **Natural Disasters**

-   **Influx of Illegal Aliens**

-   **Challenges to Agency Actions**

-   **Statutory Enactments**

-   **Bankruptcies**

-   **Counterterrorism Measures**

-   **Whistleblower Referrals**

-   **Vaccine Program Expansion**

-   **Federal Procurement Actions**

**Internal Challenges:**

The external challenges create the Division's greatest internal
challenge: the unpredictable volume and nature of the cases assigned to
the Division. The Division typically does not have the flexibility to
adequately respond to a huge influx of cases, especially when the
litigation involves massive volumes of evidentiary material and requires
substantial litigation support. To address these challenges, the
Division has used other mechanisms to secure the necessary funding to
assist the government in taking on these complex and resource-intensive
cases:

-   Vigorously pursue agency reimbursements.

-   Reallocate work to the extent feasible.

-   Identify prior year balances that can be made available to the
    Automated Litigation Support (ALS) no-year fund.

These strategies have varied in their success rate.

-   The Economy Act permits a federal agency to order supplies and
    services from another federal agency under certain conditions as
    prescribed in the Federal Acquisition Regulation.  The Act was
    designed to promote economy in government operations by permitting
    interagency use of resources and contracts. For example, the Corps
    is using the Civil Division's litigation support contracts to
    process the administrative claims it received following Hurricane
    Katrina. The Corps reimbursed the Division in FY 2007 and FY 2008
    for costs associated with claims processing and document production
    for discovery in the related lawsuits.

-   Section 109 of the 1995 Appropriations Act authorizes, but does not
    compel, agencies to reimburse the Civil Division for all expenses in
    litigation with unusually high costs. For example, the Federal
    Deposit Insurance Corporation reimbursed the Division for the costs
    associated with the multi-billion dollar savings and loan
    litigation, which has continued for more than a decade.

-   When overwhelmed with a flood of immigration cases, the Division
    delegated a portion of the briefs to other parts of the Department
    of Justice, including the United States Attorneys' Offices. However,
    the other offices were soon saturated, and the Division ceased
    delegating immigration cases when additional resources were
    appropriated.

**Outcomes:**

Despite these challenges, the Division has achieved remarkable success
in upholding national policies and in defending the public fisc. See the
Performance and Resource Tables on page 24 for more information.

**This Page Intentionally Left Blank**

**Appropriations Language and Analysis**

**of Appropriations Language**

**Appropriations Language**

[]{.mark}

The FY 2009 Budget request includes proposed changes in the
appropriations language listed and explained below. New language is
*[italicized and underlined]{.underline}*, and language proposed for
deletion is bracketed.

DEPARTMENT OF JUSTICE

LEGAL ACTIVITIES

SALARIES AND EXPENSES, GENERAL LEGAL ACTIVITIES

In addition, for reimbursement of expenses of the Department of Justice
associated with processing cases under the National Childhood Vaccine
Injury Act of 1986, not to exceed [\[\$6,833,000\]]{.underline}
*[\$7,833,000]{.underline}*, to be appropriated from the Vaccine Injury
Compensation Trust Fund.

**Analysis of Appropriations Language**

No substantive changes proposed.

**This Page Intentionally Left Blank**

**Decision Unit Justification**

**Civil Division: Legal Representation Decision Unit**

  --------------------------------------- ---------- --------- --------------
  **Legal Representation -- TOTAL**       **Perm.    **FTE**   **Amount
                                          Pos.**               (\$000)**

  2007 Enacted with Rescissions           1,149      1,146     \$208,311

  2007 Supplementals                      0          0         0

  2007 Enacted with Rescissions and       1,149      1,146     \$208,311
  Supplementals                                                

  Number range CHAPTER2008 Enacted        1,338      1,253     \$250,114

  Adjustments to Base & Technical         0          79        \$20,317
  Adjustments                                                  

  2009 Current Services                   1,338      1,332     \$270,431

  2009 Program Increases                  0          0         0

  2009 Request                            1,338      1,332     \$270,431

  **Number range CHAPTERTotal Change      **0**      **79**    **\$20,317**
  2008-2009**                                                  
  --------------------------------------- ---------- --------- --------------

  --------------------------------------- ---------- --------- -------------
  **Vaccine Injury Compensation Program** **Perm.    **FTE**   **Amount
                                          Pos.**               (\$000)**

  2007 Enacted with Rescissions and       0          41        \$6,333
  Supplementals                                                

  Number range CHAPTER2008 Enacted        0          41        \$6,833

  2009 Current Services                   0          41        \$6,833

  2009 Program Increases                  0          0         \$1,000

  2009 Request                            0          41        \$7,833

  **Number range CHAPTERTotal Change      **0**      **0**     **\$1,000**
  2008-2009**                                                  
  --------------------------------------- ---------- --------- -------------

**Program Description**

The Civil Division's mission to represent the United States' interests
in the courts is vital, as the government's activities affect nearly
every aspect of society. Each year the government undertakes millions of
commercial transactions involving purchases, contracts, loans, grants,
and the management of trust funds. Its policies and laws interplay with
major counterterrorism activities, the environment, the labor force,
national and local economies, industry, and the prevention of crime.

In total, 56,732 cases and matters were assigned to the Civil Division
during FY 2007, and of this, the vast majority -- 89 percent -- were
defensive. While plaintiffs in most defensive suits seek direct
financial relief, some seek to force programmatic changes that can have
far-reaching effects on law enforcement practices, entitlement programs,
and the implementation of federal statutes. Civil's affirmative work is
a relatively small, but critical, aspect of the Division's mission -
securing billions of dollars owed to the government each year.

The Civil Division is composed of six litigating branches and the Office
of Management Programs, as described throughout the following pages.

![](media/image1.jpeg){width="2.325in"
height="1.5333333333333334in"}Appellate Staff attorneys represent the
United States at the highest levels of judicial review. When the
government receives an unfavorable trial decision, the Staff works
closely with the Office of the Solicitor General to determine whether or
not to seek appellate review. The docket includes challenges to the
PATRIOT Act, the No Child Left Behind Act, and the policies of the
Medicare and Medicaid programs.

The Staff also handles a host of counterterrorism cases involving
terrorist surveillance activities, the freezing of terrorist assets, and
the designation of foreign terrorist organizations. These
responsibilities have increased significantly with the enactment of the
Military Commissions Act (MCA) of 2006. The MCA eliminates habeas
jurisdiction of all courts with respect to claims by detainees held as
enemy combatants or those awaiting enemy combatant status
determinations, as well as jurisdiction over any other claims by such
detainees. The MCA and the Detainee Treatment Act (DTA) establish a
mechanism for exclusive review in the United States Court of Appeals for
the District of Columbia Circuit of claims regarding the validity of the
military's designation of a Guantanamo detainee as an enemy combatant
and any conviction by a military commission. As of January 2008, 168
detainees have filed for review in the D.C. Circuit per the DTA and the
MCA. These cases are handled by the Appellate Staff. Each case involves
classified materials and presents serious issues of law and fact. The
detainee counsel frequently seek emergency relief and expedition of
their cases. Division attorneys anticipate that as many as 350 DTA cases
will be filed in the court of appeals. In addition to the numerous DTA
cases, the Guantanamo detainees have, in even greater numbers, filed
habeas cases in district court. Over 350 detainees have filed such
actions. Those actions have led to more than 100 related appeals filed
in the D.C. Circuit, which are all handled by the Appellate Staff. The
viability of the habeas cases (and the related appeals) is currently
unclear. On February 20, 2007, the D.C. Circuit decided in *Boumediene*
that the MCA applies to the habeas cases brought on behalf of aliens
held at Guantanamo Bay and that the MCA is not an unconstitutional
suspension of the writ. The Supreme Court, however, granted certiorari
to review the court of appeals decision and heard the argument in
December 2007. A decision is expected by June 2008.

While other branches handle cases that directly involve the defense of
monetary claims and the recovery of monies owed to the government, most
of the Federal Programs Branch's cases are not monetary. The attorneys
annually handle hundreds of defensive cases that are of unparalleled
importance because of their far-reaching repercussions for government
programs and policies. For example, they defend challenges to executive
orders and federal statutes, such as the Equal Pay Act and the Child
Online Protection Act. Also, the Branch is currently handling several
controversial housing-related lawsuits as a result of Hurricane Katrina.
Although a minority of their cases, the Branch protects the public fisc
by defending government policies and programs involving the distribution
of monetary resources and benefits.

In addition, the Branch defends federal agency officials and actions.
Eight states and the District of Columbia sued the Department of Health
and Human Services (HHS) for a penalty assessed to them for failing to
comply with child support enforcement program requirements as stated in
their federal Temporary Assistance for Needy Families (TANF) grants. In
March 2007, the court agreed with the government that HHS reasonably
interpreted TANF when it informed the states that they became subject to
the penalty after failing to meet the requirements for two consecutive
years. In another case, *Students for Sensible Drug Policy Foundation v.
Spellings*, plaintiffs claimed that a provision of the Higher Education
Act of 1965, as amended, which suspends eligibility for federal
financial aid for students who have been convicted of drug-related
offenses, is unconstitutional. In granting the government's motion to
dismiss this case against the Secretary of Education, the court cited
the rational basis of the statute -- deterring drug-related offenses on
college campuses.

The Branch's docket also includes a number of challenges to military
policy, antiterrorism laws, and national security measures -- most
notably the hundreds of habeas corpus actions filed on behalf of
Guantanamo Bay detainees. Federal Programs attorneys are working to get
these cases dismissed in light of the MCA, which recognizes an
opportunity for review in the D.C. Circuit. Related appeals are being
handled by the Division's Appellate Staff. Also, attorneys are handling
challenges to the Department of Defense's base closures.

The four distinct sections within the Torts Branch are organized
according to different areas of tort law: Environmental Torts, the
Federal Torts Claims Act (FTCA), Constitutional and Specialized Torts,
and Aviation and Admiralty Torts. The caseload includes traditional tort
suits, such as alleged malpractice at federal medical facilities,
environmental contamination cases, and maritime accident litigation. In
addition to suits filed in federal courts, the Branch handles thousands
of administrative claims every year. The Branch also administers the
Vaccine Injury Compensation and Radiation Exposure Compensation
Programs.

One of the issues faced by the Torts Branch is how to deal with
environmental contamination caused by various government activities.
Although Congress has provided funds to clean up such contamination,
tort suits are often brought against the United States seeking damages
above and beyond the funds available. The Civil Division works
diligently to protect the public fisc when such lawsuits lack legal
merit. Currently, Environmental Torts attorneys are representing the
United States' interests in the World Trade Center (WTC) litigation,
which consists of approximately 6,000 administrative claims alleging
personal injury following efforts to clean up the WTC Disaster Site, as
well as five lawsuits. *In Re World Trade Center Disaster Site
Litigation* represents the consolidation of these personal injury tort
cases being brought against the City of New York and the city's four
primary contractors for the WTC recovery and cleanup, and numerous other
entities. These claims seek, in aggregate, more than \$1 billion. The
United States has been named as a direct defendant in only three of the
consolidated cases -- and none have been properly served. However, if
suits are brought, the litigation would be very resource-intensive.

Torts attorneys also handle *Bivens* cases, which involve federal
employees who are personally sued for actions taken within the scope of
their employment. Over the past 11 years, multiple allegations have been
filed against federal officials in *Cobell v. Kempthorne*, including
several Secretaries of the Department of the Interior (DOI) and other
DOI officials. Several years ago, the district court held then-Secretary
Gale Norton and then-Assistant Secretary Neal McCaleb in contempt, for,
among other things, failing properly to undertake an accounting project.
However, the *Bivens* attorneys secured a decision from the appeals
court that vacated the contempt ruling. Effective representation of such
employees allows public servants to carry out their duties without fear
of personal liability for their actions.

The FTCA, enacted in 1946, allows citizens to sue the government in a
federal court for injuries allegedly caused by the "negligent or
wrongful act of any employee of the government while acting within the
scope of his office or employment." For any claim brought under the
FTCA, the claimant must first file an administrative claim against the
agency allegedly at fault.

![](media/image2.png)

The Branch's FTCA Staff is representing the government in over 300
lawsuits that have been filed as a result of the flooding caused by
Hurricane Katrina in [\<\<]{.mark}New Orleans[\>\>]{.mark}. Hurricane
Katrina made landfall in [\<]{.mark}Louisiana[\>]{.mark} on August 29,
2005, causing several breaches in the levees and flood walls surrounding
the [\<]{.mark}New Orleans[\>]{.mark} area. It became one of the
costliest natural disasters ever experienced in the [\<\<]{.mark}United
States[\>\>]{.mark}. Nearly 490,000 administrative claims have been
filed with the Army Corps of Engineers (the Corps). Claimants and
plaintiffs seek compensation for personal injury, death, and property
damage suffered as a result of the failure of the flood protection
system. They allege that the Corps negligently failed to build adequate
flood protection and that the Corps' negligent design, construction, and
maintenance of a navigable waterway worsened the impact of Hurricane
Katrina's storm surge.

The tort suits against the [\<\<]{.mark}United States[\>\>]{.mark}, many
of which are styled as class actions, are consolidated with hundreds of
other cases under the umbrella caption *In re Katrina Canal Breaches
Litigation*. One case, *Robinson v. United States*, has been designated
as a "test" case. On January 11, 2008, the plaintiffs and the
[\<]{.mark}United States[\>]{.mark} filed cross motions for summary
judgment in *Robinson* on the issue of the [\<\<]{.mark}United
States[\>\>]{.mark}' immunity pursuant to the Flood Control Act of 1928.
The court ordered the parties to proceed with all merits discovery and
to be prepared for a September 2008 trial of *Robinson*. Trials of other
cases involving the [\<\<]{.mark}United States[\>\>]{.mark} are
scheduled for spring and summer 2009.

The Civil Division is working closely with the Corps to ensure that the
administrative claims are processed efficiently and that the
[\<\<]{.mark}United States[\>\>]{.mark} receives the best possible
representation in the litigation. The Corps agreed to reimburse the
Department of Justice during FY 2007 and FY 2008 for the costs that the
Corps would have incurred for claims processing and discovery. In FY
2009, the three scheduled trials will require an unprecedented level of
litigation support to manage millions of paper and electronic documents.
A ruling against the government could ultimately lead to billions of
dollars in treasury losses and legal precedents that will have
significant adverse consequences in the future.

The Commercial Litigation Branch is the largest in the Civil Division
and is divided into five sections: Intellectual Property,
Corporate/Financial, Civil Frauds, Foreign Litigation, and National
Courts. Most of the cases are defensive and involve billions of dollars
in claims filed both by and against the government. These cases often
involve protracted proceedings, high monetary stakes, complex damage
theories, and large evidentiary collections.

The section with the largest caseload and most often the litigation with
the highest stakes is the National Courts Section. These attorneys
represent the government in cases filed in the Court of Federal Claims
(CFC) and the Court of Appeals for the Federal Circuit, which are
national courts located in Washington, D.C. National Courts attorneys
are also responsible for litigation filed in the Court of International
Trade, a national court located in New York City.

National Courts cases often involve billion-dollar contracts and large
corporations with virtually limitless litigation resources. A massive
group of lawsuits embodying enormous financial stakes is known
collectively as the Spent Nuclear Fuel Litigation. "Spent nuclear fuel"
is a byproduct of commercial nuclear utilities and defense activities.
Because the fuel continues to emit radiation after it no longer produces
energy for potentially thousands of years, it must be safely stored. The
Nuclear Waste Policy Act of 1982 requires the Department of Energy (DOE)
to accept the fuel at a federal facility. In 1987, Congress designated
Yucca Mountain in Nevada as the repository site. DOE entered into 76
contracts with utilities and agreed to begin accepting their fuel
starting in January 1998 in exchange for the utilities' quarterly fees.

![](media/image3.png){width="3.0680555555555555in"
height="2.615972222222222in"}

Because of delays in preparing the Yucca Mountain site, DOE has been
unable to begin acceptance and most likely will not be able to do so
until at least 2017. It is conceivable that the repository will not be
ready until the 2050s, causing the government's liability to grow
exponentially. To date, 66 cases seeking \$50 billion in damages have
been filed in the CFC alleging a partial breach of contract. Trials are
expected in up to 13 cases in fiscal years 2008 and 2009. The cases are
scientifically complex, making them both labor- and resource-intensive.
Litigation support services, which include collecting, organizing, and
reviewing massive amounts of paper, are critical to the government's
defense.

The following serve to further exemplify the enormity of the cases that
National Courts addresses on a regular basis. The *Winstar* cases made
history in 1995 when some 400 financial institutions sought about \$30
billion for alleged losses arising from banking reforms enacted in the
1980s. The successful defense of these cases by National Courts
attorneys has limited plaintiffs' damage awards to six cents on the
dollar. Following the 1988 legislation restricting prepayment of Housing
and Urban Development-insured mortgages on low-income housing, 325
plaintiffs filed constitutional takings claims, with over \$2 billion at
issue. In *Amber Resources Co. v. United States*, the CFC awarded 40 oil
and gas lessees \$1.1 billion in restitution for an alleged material
breach in their leases, but this decision has been appealed. Finally,
Number range CHAPTERattorneys are defending the Air Force in a \$1
billion contract dispute with Northrop Grumman over the termination for
convenience of the Tri-Service Stand-Off Attack Missile, a highly
classified stealth missile.

The Corporate/Financial section is handling one of the largest cases
ever filed against the government. *Cobell v. Kempthorne* is a
multi-billion dollar claim filed against the Department of the Interior.
Plaintiffs -- 300,000 Native Americans -- seek a full accounting of
their Individual Indian Trust accounts. Legislative efforts to resolve
the litigation have failed. A new district court judge conducted an
evidentiary hearing from October 10-15, 2007. The parties have filed
post-trial documents and are awaiting the court's decision.

The Office of Foreign Litigation attorneys retain and manage foreign
counsel to represent the United States in cases filed in foreign courts.
Most of these cases are defensive and arise from a range of actions
including antiterrorism activities abroad, the war in Iraq, military
redeployments, and commercial transactions. The Office's affirmative
efforts are aimed at fighting cross-border fraud that targets American
citizens, such as telemarketing fraud.

The Branch also handles a wide variety of litigation involving patents,
trademarks, copyrights, trade secrets, and other related matters. For
example, when patent infringement claims threatened a cessation of
BlackBerry service, Intellectual Property attorneys worked to ensure
that the government would be exempt from an injunction against use of
the service. The most significant defensive suits are brought by major
corporations seeking substantial recoveries for the government's use of
patented inventions, such as night vision compatible displays used in
military aircraft in *Honeywell International v. United States*.
Affirmative litigation enforces government-owned patents, trademarks,
copyrights, and patent indemnity agreements.

![](media/image4.wmf)

Through affirmative litigation, Commercial Litigation attorneys recover
losses from those who perpetrate fraud against the government and misuse
taxpayers' monies. Working with the United States Attorneys' Offices,
Branch attorneys recover millions, and often billions, of dollars each
year from individuals and companies who have defrauded the government by
violating the terms of federal contracts, grants, loans, subsidies,
Medicare, and other federal health insurance programs. The chart above
details the number of pending fraud cases by federal agency for which
the Frauds staff is working to recover money (as of January 2, 2008). In
FY 2007, settlements and judgments in suits and investigations of fraud
against the Federal Government exceeded \$2 billion.

Since the events of September 11, 2001, the government has increased
spending to address homeland security concerns and to fight the wars in
Iraq and Afghanistan. In order to ensure that this increase in funding
has its intended effect and is not diverted by fraud, the Division has
also increased efforts to detect, aggressively investigate, and pursue
individuals and entities that engage in procurement fraud.

A significant portion of fraud cases are filed under the "*qui tam*"
provision of the False Claims Act. The Act, as passed in 1863 and
amended in 1986, defines and establishes liability for fraud perpetrated
against the government. Under the *qui tam* provision, a citizen with
knowledge of such fraud can sue on behalf of the government. Of the
1,451 cases pending, 78 percent were filed under the *qui tam*
provision. In FY 2007 alone, the Department recovered more than \$1.4
billion in *qui tam* cases -- 70 percent of total recoveries.

The Division's base budget is devoted almost exclusively to defensive
litigation -- cases that *require* representation to ensure that the
government does not lose hundreds of billions of dollars in adverse
judgments and settlements. Thus, funding for affirmative cases has
increasingly relied on external sources, mainly the Health Care Fraud
and Abuse Control account (HCFAC) and Three Percent Fund. The HCFAC
account is appropriated from the Medicare Trust Fund. It is distributed
in amounts that the Secretary of HHS and the Attorney General jointly
certify as necessary to finance anti-fraud activities. Three Percent
resources fluctuate annually in accordance with the level of recoveries.
In 2007, the DOJ leadership's Health Care Fraud Initiative increased
resources to the Civil Division from both HCFAC and the Three Percent
Fund. This allowed the Division to hire an additional seven people
devoted to heath care fraud.

The Office of Consumer Litigation enforces federal consumer protection
laws. Most enforcement suits involve fraud perpetrated by manufacturers
and distributors of misbranded, adulterated, or defective consumer
goods. Success in these cases safeguards consumers from dangerous or
worthless products and from unfair and deceptive trade practices.
Consumer also handles a growing number of health care fraud-related
cases, some civil but mostly criminal. In the summer of 2007, the
resources available for these cases were virtually maxed out. However,
the shortfall was alleviated when the Department implemented its Health
Care Fraud Initiative in 2007. It provided HCFAC resources for
Consumer's criminal cases and additional Three Percent Fund money for
Automated Litigation Support services.

Most of the Office's cases are affirmative and are filed on referral
from the Food and Drug Administration (FDA), the Federal Trade
Commission, the Consumer Product Safety Commission, and the National
Highway Traffic Safety Administration. The Office handles civil penalty
cases brought under consumer protection statutes as well as cases
concerning fraudulent activities that extract billions of dollars from
unsuspecting consumers through deceptive advertisements and sales and
through unfair credit practices. All together, the Office's affirmative
litigation generates hundreds of millions of dollars in recoveries for
the United States.

Many of the major affirmative cases handled by the Office of Consumer
Litigation deal with protecting the public from business opportunity
scams. One group of cases that exemplifies this work arose from a
fraudulent scheme to sell a business involving DVD vending machines.
American Entertainment Distributors, Inc. (AED), defrauded consumers
across the United States of approximately \$19,000,000.  Eleven
defendants, including owners, salesmen, and AED representatives, have
been convicted and given sentences ranging from one to ten years in
prison. Additionally, a number of the defendants have been ordered to
pay back millions of dollars in restitution. The president of AED has
thus far been given the strictest sentence of ten years and one month in
prison, and was ordered to pay \$12,000,000 in restitution. AED is one
of a series of prosecutions over the past two years involving fraudulent
business opportunities which have led the Office to bring charges
against almost 80 individuals, 69 of whom have already been convicted.
Prison terms have stretched to more than 15 years in prison, and a total
of more than \$100,000,000 in restitution has been ordered in these
cases.

The Office also defends challenges to consumer protection laws. Such
suits include those filed by major drug manufacturers challenging the
FDA's approval of generic versions of some of the most widely-used,
name-brand medications. In *Biovail Laboratories v. FDA*, the court
rejected Biovail Corporation's challenge to the FDA's approval of a
generic version of Biovail's blockbuster drug, Wellbutrin XL. The court
agreed with the FDA that Biovail's claim that this product was not
bioequivalent to the patented drug was unfounded and denied injunctive
relief against the government.

Established in 1983 to achieve central control over immigration
litigation, the Office of Immigration Litigation (OIL) upholds the
enforcement actions of the Department of Homeland Security (DHS) and
DOJ's Executive Office for Immigration Review (EOIR).  With its unique
expertise in immigration law, OIL provides the government with the best
possible defense in district court cases and against challenges to
removal orders filed in circuit courts by illegal aliens, many of
whom are criminals.  

DHS's Customs and Border Protection and Immigration and Customs
Enforcement divisions estimate that more than 11,000,000 illegal aliens
reside in the United States. It is therefore not surprising that in
addition to defending counterterrorism efforts, much of the Office's
attorney time is devoted to the growing number of petitions filed in
circuit courts that seek to overturn removal decisions issued by DHS and
EOIR. OIL's share of federal court litigation is now so large that
immigration cases comprise approximately one-third of the cases handled
annually by the Civil Division. Vigorous defense of these cases is
critical to national security and the safety of our communities.

![](media/image5.png){width="2.6979166666666665in" height="2.5in"}Board
of Immigration Appeals (BIA) in EOIR. Thus, as DHS continues to increase
its immigration enforcement efforts and the BIA continues to adjudicate
large numbers of removal cases each year, OIL's caseload will continue
to grow into FY 2009. OIL's caseload for FY 2007 exceeded 22,000, and
this number is expected to increase to nearly 26,000 in FY 2009. This
growth is also fueled by the sharp rise in the percentage of removal
decisions that aliens appeal to the federal circuit courts. Congress
demonstrated its support for immigration activities and provided funding
for the Division to hire OIL attorneys in FY 2006 and FY 2007. Congress
and the administration again have shown their support for increased
funding in the passage of the most recent appropriations bill. The
Consolidated Appropriations Act, 2008, provides \$10,000,000 in
emergency funds and \$9,000,000 in permanent resources to further
alleviate OIL's caseload burden.

In addition to fulfilling a key role in addressing the public's
widespread desire to gain control over the Nation's borders, the
Office's docket often includes sensitive and difficult cases, some of
which involve fundamental questions concerning the authority of the
Executive and the respective roles of Congress and the courts in
immigration matters. One of the most significant items of legislation
passed by Congress was the REAL ID Act of 2005. There are a number of
components to this act. Each component works towards tightening controls
on aliens in the [\<\<]{.mark}United States[\>\>]{.mark} and also
provides for more flexibility for executive decisions in regard to
border control. While this Act has remained controversial, OIL has time
and again defended its constitutionality, one recent example being *Iasu
v. Smith.* In December 2007, the Ninth Circuit held that the REAL ID Act
was not an unconstitutional suspension of the writ of habeas corpus as
applied to the alien's citizenship claim. The Eritrean alien raised this
claim for the first time in a petition for a writ of habeas corpus filed
in the district court after the effective date of the REAL ID Act. The
court of appeals held that the district court properly dismissed the
alien's habeas petition under the REAL ID Act, and concluded that it
also lacked jurisdiction to review the citizenship claim because the
statute creating jurisdiction over nationality claims only applies to
claims made on direct review of a final order of deportation.

The 110^th^ Congress has proposed bills that would overhaul current
immigration statues. Thus far, these bills have not been passed.
However, such a development would likely increase the Office's caseload
as without the current statutes, aliens would have more legal leverage
in their efforts to protest the court's removal decisions.

**Number range CHAPTERVaccine Injury Compensation Program**

**Number range CHAPTER**Congress enacted the National Childhood Vaccine
Injury Act of 1986 (the Act) to avert a crisis affecting the vaccination
of children against infectious childhood diseases. There were two
primary concerns: 1) individuals injured by vaccines faced an
inconsistent, expensive, and unpredictable tort system for compensating
claims; 2) the risk of tort litigation threatened to reduce the number
of vaccine manufacturers that could viably meet market demands.
Recognizing that the "vaccination of children against deadly, disabling,
but preventable infectious diseases has been one of the most
spectacularly effective public health initiatives this country has ever
undertaken," Congress acknowledged a responsibility "to ensure that all
children who are injured by vaccines have access to sufficient
compensation for their injuries."[^1]

![](media/image6.jpeg){width="1.8270833333333334in"
height="2.5416666666666665in"}The Act established the Vaccine Injury
Compensation Program (VICP, the Program), a no-fault compensation system
for persons suffering injury or death allegedly attributable to certain
vaccines. Administered by the Department of Health and Human Services
(HHS), DOJ, and the Office of Special Masters within the Court of
Federal Claims (CFC), the Program is intended to provide a more
expeditious, less costly way for resolving claims. An individual
claiming a vaccine-related injury or death must file a petition for
compensation with the CFC before pursuing any civil action against a
manufacturer or physician. To ensure that compensation is awarded to
those whom Congress intended, claims are closely examined for legal and
medical sufficiency, with the recognition that eligible claimants should
be compensated fairly and expeditiously. Special Masters conduct
hearings as necessary to determine whether a petitioner is entitled to
compensation and, if so, how much.

The Act also created a Vaccine Injury Compensation Trust Fund that is
used to pay awards to individuals injured by vaccines, in addition to
claimants' attorneys' fees. The Trust Fund is funded by an excise tax
imposed on each purchased dose of a covered vaccine. Since the inception
of the Program in 1988, more than \$1.7 billion in compensation has been
awarded to over 2,100 claimants who would have otherwise stood little
chance of recovery in traditional tort litigation. Additionally, costly
litigation against drug manufacturers and health care professionals who
administer vaccines has nearly ceased. As a result, the supply of
vaccines has stabilized, and development of new vaccines has increased.
By protecting the Trust Fund against claims by those who have not
suffered a vaccine-related injury, the Division helps to preserve the
Fund for future deserving claimants.

Trust Fund monies also pay the administrative costs of HHS, the Civil
Division's VICP staff, and the Office of Special Masters. The Civil
Division requests that its current reimbursement level of \$6,833,000 be
increased by \$1,000,000, for a total of 41 FTE and \$7,833,000.
Approval of this request is required to litigate about 4,800 pending
autism cases that are expected to become active in FY 2009. The
\$1,000,000 will provide critical Automated Litigation Support services
that facilitate efficient claims processing and resolution.

This litigation arises from claims that vaccines or a vaccine
preservative, thimerosal, can cause autism. Up to \$5 billion is at
stake -- an amount that exceeds the balance in the VICP Trust Fund. It
is imperative that the Division be adequately staffed and prepared to
handle the activated cases.

At the petitioners' urging, the court has identified three separate
causation theories to be argued in nine trials between June 2007 and
September 2008. Although a firm date has not been set, the court
envisions activating the remainder of the 4,800 cases upon conclusion of
the test cases. The Chief Special Master has indicated that he will
begin to order production of records in small groups of cases beginning
in January 2008.

The petitioners will challenge whether application of the general
causation findings will apply to each case. The pressure to expedite
consideration of the individual pending cases will be enormous. In turn,
the level of effort required to defend these cases will rise sharply.
The petitioners will be required to file case-specific medical records,
which will include hundreds, possibly thousands, of pages of medical
records in each case. While some records may be filed electronically,
others will be filed in hard copy. All the records must be automated and
made available to the government so that it may assess the factual basis
of the claims. Automated Litigation Support services will be required to
convert all the records into a searchable form.

Absent adequate resources, these claims will span many years and
severely compromise the program's ability to meet its Congressional
mandate to provide a fair and expeditious means to resolve childhood
vaccine claims. The requested increase is \$1,000,000 for Automated
Litigation Support. Approval of this request will increase the
reimbursement authority from \$6,833,000 to \$7,833,000.

**Radiation Exposure Compensation Act**

In passing the Radiation Exposure Compensation Act (RECA) in 1990,
Congress offered an apology and monetary compensation to individuals who
suffered disease or death as a result of exposure to radiation released
during atmospheric nuclear weapons testing in the 1950s and 1960s, and
underground uranium mining operations from the 1940s to the 1970s. This
program was designed as an alternative to litigation, in that the
statutory criteria did not require claimants to establish causation. If
claimants meet the criteria specified in the Act, compensation is
awarded. RECA provides fixed payments in the following amounts: \$50,000
for individuals who lived "downwind" of the Nevada Test Site; \$75,000
for individuals present at test site locations; and \$100,000 for
uranium miners, mill workers, and ore transporters.

Since the Program began receiving claims in 1992, 27,492 claims have
been filed and more than \$1.2 billion has been awarded to 18,885
claimants (as of January 6, 2008). The vast majority of claims are filed
by people who live in the Four Corners region -- Utah, Colorado, New
Mexico, and Arizona. This area had the greatest concentration of uranium
ore, and both the mining and production industries were centered there.
The "downwind" regions, counties in Nevada, Utah, and Arizona, account
for thousands of claims in connection with the fallout from above-ground
nuclear weapons testing.

![](media/image7.png){width="6.625in" height="5.001388888888889in"}

Since its inception, various groups have sought to pressure Congress and
the Executive Branch to expand or otherwise change the scope of the
Program. In July 2000, RECA Amendments extended compensation to new
categories of beneficiaries, added compensable diseases, expanded both
the years and geographic areas covered, and lowered the exposure level
that miners must demonstrate to receive compensation. These statutory
changes caused an influx of new claim filings and a substantial increase
in awards.

A National Academy of Sciences 2005 study recommended an overhaul of the
Program that would base compensation on an exposure dose assessment for
all victims regardless of geographic region. Such changes would require
legislative amendments to the current statute. In this case, the claims
examination process would dramatically expand and change. Bills were
also introduced in this Congress to include Idaho, Montana, and Guam as
covered downwind areas.

In FY 2006, the RECA Program was evaluated with OMB's Program Assessment
Rating Tool. The Program received a rating of "Adequate," and is working
to implement the improvement actions recommended by OMB. For more
information, see page 34.

The workload of the Civil Division is as broad and diverse as the
activities of the 200-plus federal agencies it represents. In addition
to its role in defending and promoting the laws, policies, and programs
of the United States, the Division protects the public fisc. Key to
ensuring the Division's continued success in these matters is responsive
management capable of providing executive leadership and promoting
performance and fiscal responsibility. The Office of Management Programs
(OMP) serves this purpose. OMP is comprised of five administrative
offices, which contribute to the effective management of the Division.

**Office of Planning, Budget, and Evaluation**

As the largest litigating division of the Department of Justice, the
Civil Division is responsible for processing the largest number and
value of financial transactions in the General Legal Activities
appropriation. The Office of Planning, Budget, and Evaluation (OPBE)
effectively and efficiently allocates resources according to enacted
appropriations and agency reimbursements. In October 2007, the Civil
Division successfully transitioned to the Department-wide Consolidated
Debt Collection System. Within OPBE is the Communications Unit, which
provides a service to the general public by coordinating responses to
approximately 2,000 congressional and public inquiries each year.

**Office of Litigation Support**

![](media/image8.jpeg){width="3.0416666666666665in"
height="2.28125in"}The most direct way OMP promotes performance is
through its Automated Litigation Support (ALS) program. This program is
run by the Office of Litigation Support (OLS) through large contracts
for support activities. The ALS program provides a reliable, efficient,
and secure means of converting millions of pages of unorganized paper
and electronic evidence into fully searchable imaged-enabled databases
available to attorneys on their desktops or while they are traveling.
For example, the photo to the right shows just a small number of the
boxes of paper related to the Hurricane Katrina litigation. Other
critical benefits of the ALS program include the ability to quickly
engage qualified subject matter consultants, IT specialists, paralegals,
and trial presentation consultants, who are essential to the successful
handling of the Civil Division's highest-stakes cases. OLS has provided
indispensable support to the Division's largest defensive cases,
including *Winstar*, Spent Nuclear Fuel, and Hurricane Katrina, as well
as to major affirmative matters, such as the Pharmaceutical fraud cases.

**Office of Policy and Management Operations**

The Office of Policy and Management Operations (OPMO) manages the
Justice Consolidated Network (JCON) office automation system.  JCON
provides Civil Division staff with computer workstations, printers,
scanners, and network equipment, which allow access to e-mail, document
storage, office application software, legal research applications, such
as Westlaw, Lexis/Nexis, and the Internet.  The Civil Division's
centralized records management staff manages the creation, maintenance,
retrieval, and lawful disposition of all the Division's official
litigation case files.  These amount to almost 259,000 file sections for
active cases and more than 1,646,000 file sections for cases closed over
the past 30 years.

**Office of Administration**

Responsive administrative support is just as crucial as litigation and
technological support. The Office of Administration (OA) provides many
services to the Civil Division, including recruitment, hiring, employee
assistance, incentives, training, labor relations, procurement,
facilities management, security, and providing office furniture,
equipment, and supplies.

The Office of Administration assisted the Department in acquiring
replacement office space and then planned a major move of 300 employees
in 2007. The new space will be less expensive, more secure, and closer
to other Division facilities than that being vacated. OA's endeavors
have surely played a role in the Civil Division ranking 13 out of 222
agency subcomponents in the "Best Places to Work in the Federal
Government 2007" rankings.[^2]

**Office of Management Information**

Successful management of the Civil Division's ever-expanding caseload is
essential to ensuring efficiency in all stages of litigation. The Office
of Management Information (OMI) maintains CASES, the Civil Division's
automated case information tracking system, which contains the basic
data for over 700,000 open and closed cases. Attorneys can access CASES
directly from their desktop computers to obtain case-related information
and enter case-related time. Managers can search the database or
generate reports developed to their specifications and available on the
Division's intranet. Such information is useful in monitoring caseload
activity and time expenditures, tracking litigation histories, analyzing
caseload trends, and evaluating future resource requirements. OMI is
also participating in the development and implementation of the
Department-wide Litigation Case Management System (LCMS). The Division
is expected to transition to LCMS in late FY 2009.

<table style="width:100%;">
<colgroup>
<col style="width: 6%" />
<col style="width: 0%" />
<col style="width: 19%" />
<col style="width: 0%" />
<col style="width: 0%" />
<col style="width: 4%" />
<col style="width: 8%" />
<col style="width: 1%" />
<col style="width: 0%" />
<col style="width: 4%" />
<col style="width: 7%" />
<col style="width: 0%" />
<col style="width: 5%" />
<col style="width: 7%" />
<col style="width: 0%" />
<col style="width: 0%" />
<col style="width: 4%" />
<col style="width: 9%" />
<col style="width: 0%" />
<col style="width: 5%" />
<col style="width: 14%" />
</colgroup>
<tbody>
<tr class="odd">
<td colspan="21"><strong>Number range CHAPTERPERFORMANCE AND RESOURCES
TABLE</strong></td>
</tr>
<tr class="even">
<td colspan="21"><strong>Number range CHAPTERDecision Unit: Department
of Justice – Civil Division – Legal RepresentationNumber range
CHAPTERNumber range CHAPTER</strong></td>
</tr>
<tr class="odd">
<td colspan="21"><p><strong>DOJ Strategic Goal II: Prevent Crime,
Enforce Federal Laws and Represent the Rights and Interests of the
American People.</strong></p>
<p>Number range CHAPTER<strong>Objective 2.7:</strong>
<strong>Vigorously enforce and represent the interests of the United
States in all matters over which the Department has
jurisdiction.</strong></p></td>
</tr>
<tr class="even">
<td colspan="3"><strong>Number range CHAPTERWORKLOAD/
RESOURCES</strong></td>
<td colspan="4"><strong>Final Target</strong></td>
<td colspan="5"><strong>Actual</strong></td>
<td colspan="4"></td>
<td colspan="2"><strong>Changes</strong></td>
<td colspan="3"><strong>Requested (Total)</strong></td>
</tr>
<tr class="odd">
<td colspan="3"></td>
<td colspan="4"><strong>FY 2007</strong></td>
<td colspan="5"><strong>FY 2007</strong></td>
<td colspan="4"><strong>FY 2008 Enacted</strong></td>
<td colspan="2"><strong>Current Services Adjustments and FY 2009 Program
Changes</strong></td>
<td colspan="3"><strong>FY 2009 Request</strong></td>
</tr>
<tr class="even">
<td rowspan="2"><strong>Workload</strong></td>
<td colspan="2"><p>Number range CHAPTER1. Number of cases pending</p>
<p>beginning of year</p></td>
<td colspan="4">39,383Number range CHAPTER</td>
<td colspan="5">38,803</td>
<td colspan="4">41,117</td>
<td colspan="2">N/A</td>
<td colspan="3">39,910</td>
</tr>
<tr class="odd">
<td colspan="2"><p>Number range CHAPTER2. Number of cases received
during</p>
<p>the year</p></td>
<td colspan="4">21,256</td>
<td colspan="5">17,929</td>
<td colspan="4">21,859</td>
<td colspan="2">N/A</td>
<td colspan="3">20,309</td>
</tr>
<tr class="even">
<td></td>
<td colspan="2">Number range CHAPTER3. Total workload</td>
<td colspan="4">60,639</td>
<td colspan="5">56,732</td>
<td colspan="4">62,976</td>
<td colspan="2">N/A</td>
<td colspan="3">60,219</td>
</tr>
<tr class="odd">
<td colspan="3" rowspan="2"><p><strong>Number range CHAPTERTotal Costs
and FTE</strong></p>
<p>Includes $3,400,000 for administrative expenses associated with the
RECA Program in FY 2007</p>
<p>(Reimbursable FTE are included, but reimbursable costs are bracketed
and not included in the total)</p></td>
<td colspan="3"><strong>FTE</strong></td>
<td><strong>$000</strong></td>
<td colspan="3"><strong>FTE</strong></td>
<td colspan="2"><strong>$000</strong></td>
<td><strong>FTE</strong></td>
<td colspan="3"><strong>$000</strong></td>
<td><strong>FTE</strong></td>
<td><strong>$000</strong></td>
<td colspan="2"><strong>FTE</strong></td>
<td><strong>$000</strong></td>
</tr>
<tr class="even">
<td colspan="3">1,187Number range CHAPTER</td>
<td><p>$208,311</p>
<p>[$76,721]</p></td>
<td colspan="3">1,187Number range CHAPTER</td>
<td colspan="2"><p>$208,311</p>
<p>[$93,564]</p></td>
<td>1,253<mark>Number range CHAPTER</mark></td>
<td colspan="3"><p>$250,114</p>
<p>[$102,444]</p></td>
<td>79</td>
<td><p>$20,317</p>
<p>[($35,190)]</p></td>
<td colspan="2">1,378</td>
<td><p>$270,431</p>
<p>[$67,254]</p></td>
</tr>
<tr class="odd">
<td>Number range CHAPTER<strong>TYPE/ Strategic Objective</strong></td>
<td colspan="2"><strong>PERFORMANCE</strong></td>
<td colspan="4"><strong>FY 2007</strong></td>
<td colspan="5"><strong>FY 2007</strong></td>
<td colspan="4"><strong>FY 2008 Enacted</strong></td>
<td colspan="2"><strong>Current Services Adjustments and FY 2009 Program
Changes</strong></td>
<td colspan="3"><strong>FY 2009 Request</strong></td>
</tr>
<tr class="even">
<td>Number range CHAPTER<strong>Output</strong></td>
<td colspan="2"><p>Number range CHAPTER1. Number of cases terminated</p>
<p>during the year</p></td>
<td colspan="4">18,061Number range CHAPTER</td>
<td colspan="5">15,615</td>
<td colspan="4">23,066</td>
<td colspan="2">N/A</td>
<td colspan="3">17,119</td>
</tr>
<tr class="odd">
<td></td>
<td colspan="20"><strong>Civil Division Performance Measures (Excludes
VICP and RECA)</strong></td>
</tr>
<tr class="even">
<td rowspan="5">Number range CHAPTER<strong>Outcome</strong></td>
<td colspan="3"><p>2. Number range CHAPTERPercent of civil cases
favorably</p>
<p>resolved</p></td>
<td colspan="3">80%</td>
<td colspan="5">89%</td>
<td colspan="3">80%</td>
<td colspan="4">N/A</td>
<td colspan="2">80%</td>
</tr>
<tr class="odd">
<td colspan="3"><p>3. Number range CHAPTERPercent of defensive cases
in</p>
<p>which at least 85 percent of the</p>
<p>claim is defeated</p></td>
<td colspan="3">80%</td>
<td colspan="5">91%</td>
<td colspan="3">80%</td>
<td colspan="4">N/A</td>
<td colspan="2">80%</td>
</tr>
<tr class="even">
<td colspan="3"><p>4. Number range CHAPTERPercent of affirmative cases
in</p>
<p>which at least 85 percent of the</p>
<p>claim is recovered</p></td>
<td colspan="3">60%</td>
<td colspan="5">68%</td>
<td colspan="3">60%</td>
<td colspan="4">N/A</td>
<td colspan="2">60%</td>
</tr>
<tr class="odd">
<td colspan="3"><p>5. Number range CHAPTERPercent of favorable
resolutions</p>
<p>in non-monetary trial cases</p></td>
<td colspan="3">80%</td>
<td colspan="5">78%</td>
<td colspan="3">80%</td>
<td colspan="4">N/A</td>
<td colspan="2">80%</td>
</tr>
<tr class="even">
<td colspan="3"><p>6. Number range CHAPTERPercent of favorable
resolutions</p>
<p>in non-monetary appellate cases</p></td>
<td colspan="3">85%</td>
<td colspan="5">87%</td>
<td colspan="3">85%</td>
<td colspan="4">N/A</td>
<td colspan="2">85%</td>
</tr>
<tr class="odd">
<td><strong>Efficiency</strong></td>
<td colspan="3"><p>7. Ratio of dollars defeated and</p>
<p>recovered to dollars obligated for</p>
<p>litigation</p></td>
<td colspan="3">$62</td>
<td colspan="5">$49</td>
<td colspan="3">$42</td>
<td colspan="4">N/A</td>
<td colspan="2">$43</td>
</tr>
<tr class="even">
<td colspan="21"><strong>PERFORMANCE AND RESOURCES TABLE
(CONTINUED)</strong></td>
</tr>
<tr class="odd">
<td colspan="5"><strong>Number range CHAPTER</strong></td>
<td colspan="4"><strong>Final Target</strong></td>
<td colspan="2"><strong>Actual</strong></td>
<td colspan="3"></td>
<td colspan="4"><strong>Changes</strong></td>
<td colspan="3"><strong>Requested (Total)</strong></td>
</tr>
<tr class="even">
<td colspan="2">Number range CHAPTER<strong>TYPE/ Strategic
Objective</strong></td>
<td colspan="3"><strong>PERFORMANCE</strong></td>
<td colspan="4"><strong>FY 2007</strong></td>
<td colspan="2"><strong>FY 2007</strong></td>
<td colspan="3"><strong>FY 2008 Enacted</strong></td>
<td colspan="4"><strong>Current Services Adjustments and FY 2009 Program
Changes</strong></td>
<td colspan="3"><strong>FY 2009 Request</strong></td>
</tr>
<tr class="odd">
<td colspan="2"></td>
<td colspan="19"><strong>Vaccine Injury Compensation
Program</strong></td>
</tr>
<tr class="even">
<td colspan="2" rowspan="2"><strong>Output</strong></td>
<td colspan="3"><p>8. Percentage of cases where the</p>
<p>deadline for filing the</p>
<p>government’s response to</p>
<p>Petitioner’s complaint (the Rule</p>
<p>(4b) report) is met once the case</p>
<p>has been deemed complete</p></td>
<td colspan="3">83%</td>
<td colspan="3">89%</td>
<td colspan="3">86%</td>
<td colspan="4">N/A</td>
<td colspan="3">86%</td>
</tr>
<tr class="odd">
<td colspan="3"><p>9. Median time to process an award</p>
<p>for damages (in days)</p></td>
<td colspan="3">485</td>
<td colspan="3">483</td>
<td colspan="3">475</td>
<td colspan="5">N/A</td>
<td colspan="2">465</td>
</tr>
<tr class="even">
<td colspan="2" rowspan="2"><strong>Outcome</strong></td>
<td colspan="3"><p>10. Percentage of cases in which</p>
<p>judgment awarding compensation</p>
<p>is rejected and an election to</p>
<p>pursue a civil action is filed</p></td>
<td colspan="3">0%</td>
<td colspan="3">0%</td>
<td colspan="3">0%</td>
<td colspan="5">N/A</td>
<td colspan="2">0%</td>
</tr>
<tr class="odd">
<td colspan="3"><p>11. Average claim processing time</p>
<p>(in days)</p></td>
<td colspan="3">1,213</td>
<td colspan="3">1,337</td>
<td colspan="3">1,433</td>
<td colspan="5">N/A</td>
<td colspan="2">1,653</td>
</tr>
<tr class="even">
<td colspan="2"><strong>Efficiency</strong></td>
<td colspan="3"><p>12. Percentage of cases in which</p>
<p>settlements are completed within</p>
<p>the court-ordered 15 weeks</p></td>
<td colspan="3">92%</td>
<td colspan="3">96%</td>
<td colspan="3">92%</td>
<td colspan="5">N/A</td>
<td colspan="2">92%</td>
</tr>
<tr class="odd">
<td colspan="2"></td>
<td colspan="19"><strong>Radiation Exposure Compensation
Program</strong></td>
</tr>
<tr class="even">
<td colspan="2" rowspan="4"><strong>Output</strong></td>
<td colspan="3"><p>13. Reduce backlog of pending</p>
<p>claims by 60% by FY 2011</p></td>
<td colspan="3"><p>(20%)</p>
<p>1,617 claims</p></td>
<td colspan="3"><p>(60%)</p>
<p>807 claims</p></td>
<td colspan="3"><p>(23%)</p>
<p>619 claims</p></td>
<td colspan="5">N/A</td>
<td colspan="2"><p>(11%)</p>
<p>553 claims</p></td>
</tr>
<tr class="odd">
<td colspan="3"><p>14. Reduce average claim processing</p>
<p>time to 200 days by FY 2011</p></td>
<td colspan="3">277</td>
<td colspan="3">298</td>
<td colspan="3">258</td>
<td colspan="5">N/A</td>
<td colspan="2">239</td>
</tr>
<tr class="even">
<td colspan="3"><p>15. Percentage of claims paid within</p>
<p>six weeks of Program receipt of</p>
<p>acceptance form</p></td>
<td colspan="3">75%</td>
<td colspan="3">91%</td>
<td colspan="3">80%</td>
<td colspan="5">N/A</td>
<td colspan="2">85%</td>
</tr>
<tr class="odd">
<td colspan="3"><p>16. Percentage of claims appeals</p>
<p>adjudicated within 90 days of</p>
<p>filing administrative appeal</p></td>
<td colspan="3">88%</td>
<td colspan="3">97%</td>
<td colspan="3">90%</td>
<td colspan="5">N/A</td>
<td colspan="2">95%</td>
</tr>
<tr class="even">
<td colspan="2"><strong>Efficiency</strong></td>
<td colspan="3"><p>17. Percentage of claims</p>
<p>adjudicated within 12 months</p>
<p>or less (RECA)</p></td>
<td colspan="3">71%</td>
<td colspan="3">71%</td>
<td colspan="3">71%</td>
<td colspan="5">N/A</td>
<td colspan="2">75%</td>
</tr>
</tbody>
</table>

+-----------------------------------------------------------------------+
| Number range CHAPTER**DATA DEFINITION, VALIDATION, VERIFICATION, AND  |
| LIMITATIONS**                                                         |
+-----------------------------------------------------------------------+
| Number range CHAPTER**DATA DEFINITION, VALIDATION, VERIFICATION, AND  |
| LIMITATIONS**                                                         |
+-----------------------------------------------------------------------+
| -   Number range CHAPTER**All Workload and Performance Indicators:**  |
|     The data source for all indicators is CASES, the Civil Division's |
|     fully automated case management system. Quality assurance efforts |
|     include: regular interviews with attorneys to review data         |
|     listings for each case; input screens programmed to preclude the  |
|     entry of incorrect data; exception reports which list data that   |
|     are questionable or inconsistent; attorney manager review of      |
|     numerous monthly reports for data completeness and accuracy; and  |
|     verification of representative data samples by an independent     |
|     contractor. Despite these measures, some data limitations do      |
|     exist. Most significantly, incomplete data can cause the system   |
|     to under-report case terminations and attorney time. Some         |
|     performance successes can be attributed to litigation where the   |
|     United States Attorneys' Offices were involved.                   |
|                                                                       |
| -   Number range CHAPTER**Performance Indicators 2, 5, and 6:**       |
|     Favorable resolutions include court judgments in favor of the     |
|     government, as well as settlements.                               |
|                                                                       |
| -   **All Workload and Performance Indicators:** All workload actuals |
|     and workload estimates exclude more than 9,000 Harbor Maintenance |
|     Tax Cases, as well as over 489,000 Hurricane Katrina              |
|     administrative claims. These cases have been removed to avoid     |
|     skewing the data.                                                 |
+-----------------------------------------------------------------------+
| **ISSUES AFFECTING FY 2007 PERFORMANCE**                              |
+-----------------------------------------------------------------------+
| -   **Performance Indicator 1:** The number of cases terminated in FY |
|     2007 was lower than expected due to the unpredictable nature of   |
|     litigation. For example, the timing of judgments and other court  |
|     decisions are up to the judge's discretion.                       |
|                                                                       |
| -   **Performance Indicator 5:** In FY 2007, there was an unusually   |
|     large number of unfavorable district court decisions in           |
|     immigration cases. These cases are often very complex and         |
|     hard-fought by the government.                                    |
|                                                                       |
| ```{=html}                                                            |
| <!-- -->                                                              |
| ```                                                                   |
| -   **Performance Indicator 11:**  Longer processing times reflect    |
|     the expectation that the 4,800 vaccine program cases currently    |
|     pending in several omnibus proceedings will begin to be resolved  |
|     in the coming years.  As these cases are finally resolved, they   |
|     will increase significantly the average processing time for all   |
|     cases completed during these years.                               |
|                                                                       |
| -   **Performance Indicator 14:**  The RECA statute permits on-site   |
|     participants sufficient time to elect whether or not to accept an |
|     award under RECA because if they accept the award they are        |
|     ineligible to receive any payment or medical benefits under       |
|     EEOICPA, even if they qualify.  As a result, processing times for |
|     on-site participants have increased and the performance target    |
|     was not met.                                                      |
+-----------------------------------------------------------------------+
| **ISSUES AFFECTING SELECTION OF FY 2008 AND FY 2009 ESTIMATES**       |
+-----------------------------------------------------------------------+
| -   Number range CHAPTER**Workload Indicators 1, 2, and 3:** The      |
|     workload is measured by summing the number of cases pending at    |
|     the beginning of the year and new cases that the Division         |
|     receives. Because 89 percent of the Division's caseload is        |
|     defensive, the size of the workload is externally driven. Between |
|     FY 2006 and FY 2009, the workload is expected to increase by 13   |
|     percent. This increase is primarily the result of pending         |
|     immigration cases, as well as additional Hurricane                |
|     Katrina--related cases and World Trade Center disaster site       |
|     administrative claims, all of which are defensive and are beyond  |
|     the Division's control.                                           |
|                                                                       |
| ```{=html}                                                            |
| <!-- -->                                                              |
| ```                                                                   |
| -   **Output Indicator 1:** The increase in estimated terminations is |
|     due to the expected resolution of thousands of Vieques            |
|     administrative claims.                                            |
|                                                                       |
| -   **Performance Indicators 2 and 3:** Vaccine Injury Compensation   |
|     Program cases are excluded from these measures.                   |
+-----------------------------------------------------------------------+

<table>
<colgroup>
<col style="width: 7%" />
<col style="width: 24%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 6%" />
<col style="width: 0%" />
<col style="width: 5%" />
<col style="width: 6%" />
<col style="width: 0%" />
<col style="width: 6%" />
</colgroup>
<tbody>
<tr class="odd">
<td colspan="14">Number range CHAPTER<strong>PERFORMANCE MEASURE
TABLE</strong></td>
</tr>
<tr class="even">
<td colspan="14">Number range CHAPTER<strong>Decision Unit: Department
of Justice – Civil Division – Legal Representation</strong></td>
</tr>
<tr class="odd">
<td colspan="2" rowspan="2">Number range CHAPTER<strong>Performance
Report and Performance Plan Targets</strong></td>
<td><strong>FY 2001</strong></td>
<td><strong>FY 2002</strong></td>
<td><strong>FY 2003</strong></td>
<td><strong>FY 2004</strong></td>
<td><strong>FY 2005</strong></td>
<td><strong>FY 2006</strong></td>
<td colspan="3"><strong>FY 2007</strong></td>
<td><strong>FY 2008</strong></td>
<td colspan="2"><strong>FY 2009</strong></td>
</tr>
<tr class="even">
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Target</strong></td>
<td colspan="2"><strong>Actual</strong></td>
<td><strong>Target</strong></td>
<td colspan="2"><strong>Target</strong></td>
</tr>
<tr class="odd">
<td>Number range CHAPTER<strong>Output</strong></td>
<td><p>Number range CHAPTER1. Number of cases terminated during</p>
<p>the year</p></td>
<td>9,902</td>
<td>12,231</td>
<td>12,154</td>
<td>15,101</td>
<td>15,727</td>
<td>13,585</td>
<td>18,061</td>
<td colspan="2">15,615</td>
<td>23,066</td>
<td colspan="2">17,119</td>
</tr>
<tr class="even">
<td></td>
<td colspan="13"><strong>Civil Division Performance Measures (Excludes
VICP and RECA)</strong></td>
</tr>
<tr class="odd">
<td rowspan="5">Number range CHAPTER<strong>Outcome</strong></td>
<td><p>2. Number range CHAPTERPercent of civil cases favorably</p>
<p>resolved</p></td>
<td>93%</td>
<td>93%</td>
<td>94%</td>
<td>93%</td>
<td>90%</td>
<td>93%</td>
<td>80%</td>
<td colspan="2">89%</td>
<td>80%</td>
<td colspan="2">80%</td>
</tr>
<tr class="even">
<td><p>3. Number range CHAPTERPercent of defensive cases in which at</p>
<p>least 85 percent of the claim is</p>
<p>defeated</p></td>
<td>84%</td>
<td>86%</td>
<td>89%</td>
<td>90%</td>
<td>90%</td>
<td>91%</td>
<td>80%</td>
<td colspan="2">91%</td>
<td>80%</td>
<td colspan="2">80%</td>
</tr>
<tr class="odd">
<td><p>4. Number range CHAPTERPercent of affirmative cases in which</p>
<p>at least 85 percent of the claim is</p>
<p>recovered</p></td>
<td>66%</td>
<td>64%</td>
<td>66%</td>
<td>65%</td>
<td>72%</td>
<td>72%</td>
<td>60%</td>
<td colspan="2">68%</td>
<td>60%</td>
<td colspan="2">60%</td>
</tr>
<tr class="even">
<td><p>5. Number range CHAPTERPercent of favorable resolutions in</p>
<p>non-monetary trial cases</p></td>
<td>80%</td>
<td>85%</td>
<td>86%</td>
<td>84%</td>
<td>89%</td>
<td>92%</td>
<td>80%</td>
<td colspan="2">78%</td>
<td>80%</td>
<td colspan="2">80%</td>
</tr>
<tr class="odd">
<td><p>6. Number range CHAPTERPercent of favorable resolutions in</p>
<p>non-monetary appellate cases</p></td>
<td>89%</td>
<td>89%</td>
<td>92%</td>
<td>93%</td>
<td>91%</td>
<td>87%</td>
<td>85%</td>
<td colspan="2">87%</td>
<td>85%</td>
<td colspan="2">85%</td>
</tr>
<tr class="even">
<td><strong>Efficiency</strong></td>
<td><p>7. Ratio of dollars defeated and</p>
<p>recovered to dollars obligated for</p>
<p>litigation</p></td>
<td>$72</td>
<td>$79</td>
<td>$64</td>
<td>$67</td>
<td>$60</td>
<td>$60</td>
<td>$62</td>
<td colspan="2">$49</td>
<td>$42</td>
<td colspan="2">$43</td>
</tr>
<tr class="odd">
<td></td>
<td colspan="13"><strong>Vaccine Injury Compensation
Program</strong></td>
</tr>
<tr class="even">
<td rowspan="3"><strong>Outcome</strong></td>
<td><p>8. Percentage of cases where the</p>
<p>deadline for filing the government’s</p>
<p>response to petitioner's complaint (the</p>
<p>Rule (4b) report) is met once the case</p>
<p>has been deemed complete</p></td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>75%</td>
<td>84%</td>
<td>82%</td>
<td colspan="2">83%</td>
<td>89%</td>
<td colspan="2">86%</td>
<td>86%</td>
</tr>
<tr class="odd">
<td><p>9. Median time to process an award for</p>
<p>damages (in days)</p></td>
<td>N/A</td>
<td>533</td>
<td>564.5</td>
<td>529.5</td>
<td>484</td>
<td>335</td>
<td colspan="2">485</td>
<td>483</td>
<td colspan="2">475</td>
<td>465</td>
</tr>
<tr class="even">
<td><p>10. Percentage of cases in which</p>
<p>judgment awarding compensation is</p>
<p>rejected and an election to pursue a</p>
<p>civil action is filed</p></td>
<td>N/A</td>
<td>0%</td>
<td>1.5%</td>
<td>0%</td>
<td>0%</td>
<td>0%</td>
<td colspan="2">0%</td>
<td>0%</td>
<td colspan="2">0%</td>
<td>0%</td>
</tr>
</tbody>
</table>

<table style="width:100%;">
<colgroup>
<col style="width: 9%" />
<col style="width: 22%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 5%" />
<col style="width: 5%" />
<col style="width: 5%" />
<col style="width: 7%" />
</colgroup>
<tbody>
<tr class="odd">
<td colspan="12"><strong>PERFORMANCE MEASURE TABLE
(CONTINUED)</strong></td>
</tr>
<tr class="even">
<td colspan="2" rowspan="2"><strong>Performance Report and Performance
Plan Targets</strong></td>
<td><strong>FY 2001</strong></td>
<td><strong>FY 2002</strong></td>
<td><strong>FY 2003</strong></td>
<td><strong>FY 2004</strong></td>
<td><strong>FY 2005</strong></td>
<td><strong>FY 2006</strong></td>
<td colspan="2"><strong>FY 2007</strong></td>
<td><strong>FY 2008</strong></td>
<td><strong>FY 2009</strong></td>
</tr>
<tr class="odd">
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Target</strong></td>
<td><strong>Actual</strong></td>
<td><strong>Target</strong></td>
<td><strong>Target</strong></td>
</tr>
<tr class="even">
<td></td>
<td><p>11. Average claim processing time</p>
<p>(in days)</p></td>
<td>N/A</td>
<td>995</td>
<td>1,021</td>
<td>738</td>
<td>894</td>
<td>834</td>
<td>1,213</td>
<td>1,337</td>
<td>1,433</td>
<td>1,653</td>
</tr>
<tr class="odd">
<td><strong>Efficiency</strong></td>
<td><p>12. Percentage of cases in which</p>
<p>settlements are completed within the</p>
<p>court-ordered 15 weeks</p></td>
<td>N/A</td>
<td>80%</td>
<td>92%</td>
<td>80%</td>
<td>95%</td>
<td>98%</td>
<td>92%</td>
<td>96%</td>
<td>92%</td>
<td>92%</td>
</tr>
<tr class="even">
<td></td>
<td colspan="11"><strong>Radiation Exposure Compensation
Program</strong></td>
</tr>
<tr class="odd">
<td><strong>Efficiency</strong></td>
<td><p>13. Reduce backlog of pending claims by</p>
<p>60% by FY 2011</p></td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>2,021</td>
<td><p>.5%</p>
<p>2,032</p></td>
<td><p>(20%)</p>
<p>1,617</p></td>
<td><p>(60%)</p>
<p>807</p></td>
<td><p>(23%)</p>
<p>619</p></td>
<td><p>(11%)</p>
<p>553</p></td>
</tr>
<tr class="even">
<td></td>
<td><p>14. Reduce average claim processing time</p>
<p>to 200 days by FY 2011</p></td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>316</td>
<td>339</td>
<td>277</td>
<td>298</td>
<td>258</td>
<td>239</td>
</tr>
<tr class="odd">
<td></td>
<td><p>15. Percentage of claims paid within six</p>
<p>weeks of Program receipt of acceptance</p>
<p>form</p></td>
<td>N/A</td>
<td>N/A</td>
<td>37%</td>
<td>51%</td>
<td>63%</td>
<td>71%</td>
<td>75%</td>
<td>91%</td>
<td>80%</td>
<td>85%</td>
</tr>
<tr class="even">
<td></td>
<td><p>17. Percentage of claims appeals</p>
<p>adjudicated within 90 days of filing</p>
<p>administrative appeal</p></td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>77%</td>
<td>84%</td>
<td>100%</td>
<td>88%</td>
<td>97%</td>
<td>90%</td>
<td>95%</td>
</tr>
<tr class="odd">
<td></td>
<td><p>18. Percentage of claims adjudicated within</p>
<p>12 months or less (RECA)</p></td>
<td>88%</td>
<td>64%</td>
<td>74%</td>
<td>55%</td>
<td>71%</td>
<td>66%</td>
<td>71%</td>
<td>71%</td>
<td>71%</td>
<td>75%</td>
</tr>
</tbody>
</table>

**Performance, Resources, and Strategies**

**Performance Plan and Report for Outcomes**

The data presented in the Performance and Resources Table demonstrate
the Civil Division's consistent success in meeting performance targets
in support of the Department's Strategic Objective 2.7 to "vigorously
enforce and represent the interests of the United States in all matters
over which the Department has jurisdiction." The following cases
highlight how Civil has recently worked to protect the public fisc,
defend United States policies, and enforce civil statutes.

Between FY 2003 and FY 2007, more than \$64 billion was saved as a
result of the Civil Division's successful defense against unmeritorious
claims. In FY 2007 alone, the Division defeated over \$10 billion in
unmeritorious claims. Significant victories include the following:

![](media/image9.wmf)

-   ***[Winstar]{.underline}*** Of the 103 cases fully resolved to date,
    75 resulted in zero damages paid to the plaintiff. For example, an
    appellate court reversed the trial court's judgment awarding damages
    of \$435,000,000 in *Long Island Savings Bank, FSB v. United
    States*. Long Island Savings Bank sued the government alleging
    breach of contract and related claims.

-   ***[Defense Department]{.underline}***

> ***[Contracts]{.underline}*** In 1991, the Navy terminated for default
> a multi-billion dollar contract with General Dynamics and the Boeing
> Co. for the development of an A-12 stealth fighter aircraft. The
> contractors challenged this termination. After initially prevailing
> before the trial court, the Federal Circuit overturned the \$1.2
> billion award and remanded the case to trial in 1999. In 2001, the
> trial court held that the contract had been properly terminated for
> default. In May 2007, the Court of Federal Claims upheld this
> determination in favor of the government. If the judgment is affirmed
> on appeal, the contractors will be required to return to the
> government over \$2.6 billion, which includes original payments of
> \$1.35 billion, plus interest.

-   ***[Jet Fuel Litigation]{.underline}*** In September 2007, the Court
    of Appeals for the Federal Circuit rejected fuel suppliers' claims
    that Department of Defense jet fuel contracts were illegal because
    they violated the Federal Acquisition Regulation's economic price
    adjustment provision. This rejection prompted the contractors to
    enter into settlement agreements. Plaintiffs originally estimated
    their claims to be worth approximately \$3 billion.

Over the last five years, the Division has also made significant
affirmative recoveries totaling \$13.5 billion. Most were the result of
procurement and *qui tam* health care fraud matters. The following cases
are particularly noteworthy:

-   ![](media/image10.wmf)***[Health Care Fraud]{.underline}*** In
    September 2007, Bristol-Myers Squibb Company (BMS) settled
    allegations involving its drug marketing and pricing practices by
    agreeing to pay the [\<\<]{.mark}United States[\>\>]{.mark} over
    \$515,000,000. The government alleged that BMS knowingly paid
    illegal remuneration to physicians and other health care providers
    to induce them to purchase BMS drugs, promoted the sale and use of
    Abilify for pediatric use and to treat dementia-related psychosis -
    both "off-label" uses, and set and maintained fraudulent and
    inflated prices for a wide assortment of oncology and generic drug
    products.

```{=html}
<!-- -->
```
-   ***[Procurement Fraud]{.underline}*** Sioux Manufacturing Corp.
    settled allegations of procurement fraud by agreeing to pay the
    United States \$1,900,000. The government accused the company of
    failing to follow specifications in making Kevlar, a protective
    material for military helmets and body armor used by the United
    States military. In a similar case, Hexcel Corporation agreed to pay
    the United States \$15,000,000 to resolve allegations related to its
    role in the manufacture and sale of defective Zylon bullet-proof
    vests to federal law enforcement agencies. The government alleged
    that Hexcel used Zylon fiber that it knew to be defective and
    degraded quickly when exposed to heat, light, and humidity.

```{=html}
<!-- -->
```
-   ***[OxyContin Prosecution]{.underline}*** The Purdue Frederick
    Company pled guilty to the felony of misbranding the painkiller
    OxyContin. Purdue's top three executives pled guilty to misdemeanor
    misbranding of OxyContin from 1996 to 2001. The court accepted these
    pleas on July 20, 2007. The case, *United States v. Purdue Frederick
    Company, et al.,* involved Purdue's misrepresentations to health
    care providers that OxyContin was less addictive, less subject to
    abuse and diversion, and less likely to cause withdrawal problems
    than other pain medications. In sentencing the defendants, the court
    imposed fines, penalties, and restitution payments totaling
    \$634,515,475 which will be paid to various entities, including
    \$276,000,000 forfeited to the United States and \$160,000,000 paid
    to federal and state government agencies to resolve liability for
    false claims made to Medicaid and other government healthcare
    programs.

The following cases are representative of the non-monetary suits handled
by Division attorneys on a daily basis:

-   ***[Designation of Foreign Terrorists and Their
    Supporters]{.underline}*** In *Global Relief Foundation v. Snow*, a
    district court granted the government's motion to dismiss, thereby
    upholding the designation of Global Relief Foundation as a
    "Specially Designated Global Terrorist." The court found that the
    evidence showed that Global Relief Foundation "assisted in,
    sponsored, or provided financial, material or other technological
    support to, or in support of, other designated terrorists." In
    addition, in *Humanitarian Law Project v. Mukasey*, the Court of
    Appeals for the Ninth Circuit upheld a federal statute that
    criminalizes the provision of material support or resources to
    designated terrorist groups if the donor knows of the group's
    designation or that it engages in terrorism.

-   ***[Challenge to United States Nuclear Weapons in
    Italy]{.underline}*** Plaintiffs in this case, including an Italian
    anti-nuclear weapon organization, filed an action seeking a
    mandatory injunction requiring the United States to remove all
    nuclear weapons, if any, from its base in Aviano, Italy. The United
    States obtained a stay on all proceedings pending a determination by
    Italy's Supreme Court of Cassation on whether or not Italian courts
    have jurisdiction to hear such a challenge. The United States
    disputed the Italian courts' jurisdiction, asserting sovereign
    immunity under customary international law, as well as the rights
    and obligations of the United States and Italy under various
    treaties, including the NATO treaty.

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-   ***[Deceptive Advertising]{.underline}*** On November 7, 2007, the
    court ruled in *United States v. Baby Tenda*, that a Baby Tenda
    crib/high chair distributor had falsely and repeatedly claimed in
    advertisements that the company's sales shows were sponsored by the
    Consumer Product Safety Commission. The court found that such
    tactics violated the mail fraud statute civilly, and that the
    company was responsible. The court also criticized the company's
    "deceitful and reprehensible" practice of luring potential customers
    to sales meetings by tricking them into believing they were coming
    to a government sponsored safety seminar.

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-   ***[Pharmaceutical Safety]{.underline}*** In *Hi-Tech
    Pharmaceuticals v. Food and Drug Administration*, the court granted
    the United States' motion for summary judgment against the
    pharmaceutical company on actions brought against Hi-Tech's dietary
    supplements containing ephedrine alkaloids. The court also denied
    Hi-Tech's motions for summary judgment and dismissed Hi-Tech's
    complaint for declatory relief against the Food and Drug
    Administration's enforcement of its rule, which declares that
    dietary supplements which contain ephedrine are adulterated, and
    thus unlawful for commercial sale. The court ruled that it must
    defer to the agency's regulation that the supplement is adulterated.

**Strategies to Accomplish Outcomes**

The Civil Division has achieved extraordinary success despite internal
and external challenges. This is due in large part to the use of the
following innovative strategies:

-   Retain cases that require coordination at the seat of government or
    subject matter expertise possessed by the Civil Division, as well as
    cases assigned to national and foreign courts.

-   Improve information dissemination between the Civil Division and the
    United States Attorneys to promote and maintain uniform litigation
    positions.

-   Work with client agencies, as well as law enforcement entities, such
    as the FBI, to ensure the best possible representation of the
    government's interests.

-   Recruit and retain a high-caliber legal staff with expertise that
    will best promote successful litigation. Structure support staff to
    take full advantage of new technologies that promote efficiency and
    productivity.

-   Maximize resources by improving cash management and utilizing
    authority to obtain reimbursements. Develop new alternative funding
    sources.

-   Invest in new technologies and litigation support services such as
    ALS to maximize productivity, meet court mandates, and prevail on
    behalf of the government.

**Results of the Program Assessment Rating Tool (PART) Reviews**

**Civil Division** During FY 2005, the Civil Division was assessed
through OMB's Program Assessment Rating Tool (PART) along with five
other litigating components (ATR, CRM, CRT, ENRD, and TAX), collectively
named the General Legal Activities Program (GLA or the Program). At the
end of the assessment, the Program received a rating of "Effective."[^3]
This is the highest rating a program can receive. Programs rated
Effective set ambitious goals, achieve results, are well-managed, and
improve efficiency. Other findings showed that:

Additionally, to exhibit continual improvement of its practices, the GLA
components have taken steps toward completing the follow-up actions
recommended by OMB:

**Vaccine Injury Compensation Program** During FY 2005, the Departments
of Justice and Health and Human Services were evaluated through OMB's
PART on their respective roles in administering the Vaccine Injury
Compensation Program (the Program). The Program received a rating of
"Adequate." This rating describes a program that needs to set more
ambitious goals, achieve better results, improve accountability or
strengthen its management practices.

OMB's findings include the following:

DOJ and HHS will take the following actions to improve the performance
of the Program:

**Radiation Exposure Compensation Program** During FY 2006, the
Radiation Exposure Compensation Program (the Program) was evaluated with
OMB's PART assessment. The Program received a rating of "Adequate."

OMB's findings include the following:

DOJ is taking the following actions to improve the performance of the
Program:

**E-Government Initiatives**

The Justice Department is fully committed to the President's Management
Agenda (PMA) and the E-Government initiatives that are integral to
achieving the objectives of the PMA. The E-Government initiatives serve
citizens, business, and federal employees by delivering high quality
services more efficiently at a lower price. The Department is in varying
stages of implementing E-Government solutions and services including
initiatives focused on integrating government wide transactions,
processes, standards adoption, and consolidation of administrative
systems that are necessary tools for agency administration, but are not
core to DOJ's mission. To ensure that DOJ obtains value from the various
initiatives, the Department actively participates in the governance
bodies that direct the initiatives and we communicate regularly with the
other federal agencies that are serving as the "Managing Partners" to
ensure that the initiatives meet the needs of the Department and its
customers. The Department believes that working with other agencies to
implement common or consolidated solutions will help DOJ to reduce the
funding requirements for administrative and public-facing systems,
thereby allowing DOJ to focus more of its scarce resources on higher
priority, mission related needs. DOJ's modest contributions to the
Administration's E-Government projects will facilitate achievement of
this objective.

**A. Funding and Costs**

The Department of Justice participates in the following E-Government
initiatives and Lines of Business:

  --------------------- ----------------- ----------------- ----------------
  Business Gateway      E-Travel          Integrated        Case Management
                                          Acquisition       LoB
                                          Environment       

  Disaster Assistance   Federal Asset     IAE - Loans &     Geospatial LoB
  Improvement Plan      Sales             Grants - Dunn &   
                                          Bradstreet        

  Disaster Assist.      Geospatial        Financial Mgmt.   Budget
  Improvement Plan -    One-Stop          Consolidated LoB  Formulation and
  Capacity Surge                                            Execution LoB

  E-Authentication      GovBenefits.gov   Human Resources   IT
                                          LoB               Infrastructure
                                                            LoB

  E-Rulemaking          Grants.gov        Grants Management 
                                          LoB               
  --------------------- ----------------- ----------------- ----------------

The Department of Justice E-Government expenses -- i.e. DOJ's share of
E-Gov initiatives managed by other federal agencies -- are paid for from
the Department's Working Capital Fund (WCF). These costs, along with
other internal E-Government related expenses (oversight and
administrative expenses such as salaries, rent, etc.) are reimbursed by
DOJ components to the WCF. The Civil Division's reimbursement amount is
based on use of the system. The table below identifies the Civil
Division's actual or planned reimbursement to the Department's Working
Capital Fund. As such, the Division's E-Government reimbursement to the
WCF is \$250,000 for FY 2008.

**B. Benefits**

***Many of these initiatives have not yet been implemented. As the
Division completes migrations to common solutions provided by an
E-Government or Line of Business initiative, it may realize cost savings
or avoidance through retirement or replacement of legacy systems and/or
decreased operational costs. The table below represents only those
E-Government initiatives and Lines of Businesses where the Civil
Division may realize benefits in FY 2008 and FY 2009.***

  ------------------ ------------ ------------- ----------------------------------
  **E-Gov            **FY 2008    **FY 2009     **Comments**
  Initiative**       Benefits**   Anticipated   
                                  Benefits**    

  E-Rulemaking       TBD          TBD           Not yet implemented

  E-Travel           TBD          TBD           Only partially implemented,
                                                savings not yet quantified

  Financial Mgmt.    TBD          TBD           Not yet implemented
  Consolidated LoB                              

  Human Resource LoB 0            0             Not expected to enter the
                                                implementation phase until after
                                                FY 2009

  Case Management    TBD          TBD           Not expected to transition to this
  LoB                                           system until late FY 2009

  Budget Formulation TBD          TBD           Not expected to implement this
  and Execution LoB                             system until after FY 2009
  ------------------ ------------ ------------- ----------------------------------

[^1]: H.R. Rep. No. 99-908, 99^th^ Cong., 2d Sess. 7 (1986), *reprinted
    in* 1986 U.S.C.C.A.N. 6344, 6348.

[^2]: The Partnership for Public Service and American University's
    Institute for the Study of Public Policy Implementation using data
    from the Office of Personnel Management's Federal Human Capital
    Survey, bestplacestowork.org/BPTW/rankings.

[^3]: Programs undergoing the PART receive one of five ratings:
    Effective, Moderately Effective, Adequate,

    Ineffective, or Results Not Demonstrated.