# Civil Division

**U.S. Department of Justice**

**FY 2008 Performance Budget**

**Congressional Submission**

**February 2007**

# 

# 

# Table of Contents 

Page No.

**I. Overview 2**

**II. Summary of Program Changes 6**

III\. Appropriations Language and Analysis of Appropriations Language 8

IV\. Decision Unit Justification

A. Legal Representation 10

1\. Program Description

2\. Performance Tables

3\. Performance, Resources, and Strategies

**V. Program Increases by Item**

A.  Immigration Litigation 28

B.  Guantanamo Bay Detainee (GTMO) Litigation 33

**VI. Program Offsets by Item N/A**

VII\. Exhibits

A.  Organizational Chart

B.  Summary of Requirements

C.  Program Increases by Decision Unit

D.  Resources by DOJ Strategic Goal/Objective

E.  Justification for Base Adjustments

F.  Crosswalk of 2006 Availability

G.  Crosswalk of 2007 Availability

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H.  Summary of Reimbursable Resources

I.  Detail of Permanent Positions by Category

J.  Financial Analysis of Program Increases/Offsets

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**

![](media/image1.wmf)

Each year the Department of Justice (DOJ) receives roughly 100,000 new
civil cases and matters, the majority of which are handled by the U.S.
Attorneys' Offices. Situated at the seat of Government, the Civil
Division retains only a small portion of this work. Generally, the
Division's litigation falls into one of the following categories: cases
filed in national or foreign courts; cases that cross multiple
jurisdictions; cases that involve national policies; and/or cases that
are so massive and span so many years that they would overwhelm the
resources and infrastructure of any individual field office.

The Division's role is two-fold. It represents some 200 Federal
agencies, the Administration and the Congress. And, it must represent
the Government as a whole to ensure lasting precedents favorable to the
United States.

The overwhelming majority -- about 90 percent -- of the Civil Division's
cases are defensive, and 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,
entitlement programs, as well as law enforcement initiatives, military
actions, and counterterrorism efforts. Every year, Civil defeats
billions of dollars in unmeritorious claims. 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,
billions of dollars are returned to the treasury, Medicare, and other
entitlement programs as a result of Civil's affirmative litigation
efforts.

In addition, the Civil Division is 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.

It is now possible for the public to view and better understand the
responsibilities and goals of the Civil Division. Beginning in FY 2007,
electronic copies of the Department of Justice's congressional budget
justifications and Capital Asset Plan and Business Case exhibits can be
viewed or downloaded from the Internet using the Internet address:
http://www.usdoj.gov/jmd/2008justification.

**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 (2003-2008). Of the Division's roughly 1,000 employees,
the vast majority are assigned to the litigating branches. In addition,
most time expended by branch attorneys is devoted to litigation.

For FY 2006, \$380,000,000 was available to the Division, exclusive of
the RECA Trust Fund (see Civil's RECA Trust Fund Budget) and the
September 11^th^ Victim Compensation Program, which sunset in 2003.
Fifty-three percent of this funding came from the GLA appropriation
while forty-seven percent was provided through DOJ allotments and
reimbursements. The following table provides a list of the Civil
Division's funding sources, including appropriations and reimbursements.
The \$15,000,000 dollar decrease between 2005 and 2006 was largely a
result of the progress made in resolving the *Winstar* cases.

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

  **Appropriations**           **2001**    **2002**    **2003**    **2004**    **2005**    **2006**

  **Number range CHAPTERLegal  153.7       162.5       167.5       174.4       174.9       192.2
  Representation (GLA)**                                                                   

  Immigration & Katrina        ...         ...         ...         ...         ...         9.6
  Emergency Supplemental                                                                   

  Number range CHAPTERRECA -   2.0         1.9         ...         ...         ...         ...
  Admin. (Became part of Legal                                                             
  Representation in FY 2003)                                                               

  **Number range               **155.7**   **164.4**   **167.5**   **174.4**   **174.9**   **201.8**
  CHAPTERSubtotal**                                                                        

  Number range                                                                 []{.mark}   []{.mark}
  CHAPTER**Anticipated                                                                     
  Reimbursements:**                                                                        

  Number range CHAPTERFDIC -   70.6        63.3        32.3        38.5        30.2        18.3
  Winstar                                                                                  

  Number range CHAPTERVaccine  4.0         4.0         4.0         4.0         6.3         6.3
  Compensation Program                                                                     

  Number range CHAPTERThree    9.9         32.8        15.7        34.8        31.7        10.0
  Percent - Debt Collection                                                                

  Number range CHAPTERHealth   16.7        21.0        14.4        14.5        15.5        15.3
  Care Fraud Abuse Control                                                                 

  Number range CHAPTEROther    33.1        32.7        59.0        36.9        75.4        36.3
  Reimbursements                                                                           

  **Number range               **134.3**   **153.8**   **125.4**   **128.7**   **159.1**   **86.2**
  CHAPTERSubtotal**                                                                        

  Number range CHAPTER**DOJ                                                    []{.mark}   []{.mark}
  Accounts:**                                                                              

  Number range CHAPTERWorking  ...         ...         23.4        ...         ...         ...
  Capital Fund                                                                             

  AFF & Super Surplus          ...         ...         ...         ...         ...         .75

  Number range CHAPTERExpert   33.1        38.1        38.0        46.6        45.1        49.1
  Witnesses (FEW)                                                                          

  Number range CHAPTERPrivate  5.5         7.0         7.2         9.0         12.3        15.3
  Counsel (FEW)                                                                            

  Number range CHAPTERALS No   ...         ...         ...         2.5         3.3         15.6
  Year                                                                                     

  Number range CHAPTERVCR      ...         2.0         2.0         0.2         ...         ...
  Carry Forward                                                                            

  **Number range               **38.6**    **47.1**    **70.6**    **58.3**    **60.7**    **80.75**
  CHAPTERSubtotal**                                                                        

  Number range                 **328.6**   **365.3**   **363.5**   **361.4**   **394.7**   **379.75**
  CHAPTER**TOTAL - ALL                                                                     
  SOURCES**                                                                                
  ---------------------------- ----------- ----------- ----------- ----------- ----------- ------------

For FY 2008, the Division requests 1,368 positions (959 attorneys),
1,298 FTE, and \$245,023,000 to meet its mission and performance goals.
Current services positions and FTEs reflect estimates that may change
once final staffing decisions have been determined. The FY 2008 request
includes program increases of 192 positions (147 attorneys), 97 FTE, and
\$17,387,000 to address two of the nation's most probing problems:
immigration enforcement and the resolution of issues concerning
Guantanamo Bay detainees.

**Issues, Strategies, and Outcomes**[^1]

![](media/image2.wmf)Between FY 2006 and FY 2008 the workload is
expected to grow from approximately 53,821 to 65,002 -- an increase of
21 percent -- as a result of continued growth in immigration cases, as
well as an influx of cases filed by prisoners detained at Guantanamo
Bay. These estimates exclude 9,004 Harbor Maintenance Tax as well as
some 25,883 administrative claims that have been filed with the Army
Corps of Engineers in connection with Hurricane Katrina. It is likely
that a large number of these claims will be appealed to the Federal
court and handled by the Civil Division attorneys.

Because the caseload is mostly defensive, the Division 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 likewise
determined by exogenous factors:

! **Military Actions ! Natural Disasters ! Influx of Illegal Aliens**

**! Challenges to Agency Actions ! Statutory Enactments ! Bankruptcies**

**! Implementation of Counterterrorism Measures ! Whistleblower
Referrals**

**! Vaccine Program Expansion ! Federal Procurement Actions**

Despite these challenges, the Division has achieved remarkable success,
as exemplified by the statistics below. This success has been attained
by implementing effective strategies, such as retaining a high-quality
legal staff and using advanced information technology systems to enhance
attorney productivity. Thus far the Division has been able to maximize
limited resources by implementing tighter cash-management controls and
obtaining client agency reimbursements. Since FY 2001, the Division has
met or exceeded all of its performance goals. Much of this success was
achieved with the participation of the U.S. Attorneys Offices. See the
Performance and Resources Table on page 19 for more information.

[^2]

**Summary of Program Changes**

+-------------------------------------+-----+-----+------------+----+
| Number range CHAPTER**Proposed FY   |     |     |            |    |
| 2008 Program Changes**              |     |     |            |    |
|                                     |     |     |            |    |
| **GLA Appropriation**               |     |     |            |    |
+-------------------------------------+-----+-----+------------+----+
| **Item Name**                       | **  | *   | **Dollars  | ** |
|                                     | Pos | *FT | (\$000)**  | Pa |
|                                     | .** | E** |            | ge |
|                                     |     |     |            | ** |
+-------------------------------------+-----+-----+------------+----+
| Immigration Litigation              | 163 | 82  | \$14,124   | 28 |
+-------------------------------------+-----+-----+------------+----+
| Guantanamo Bay Detainee Litigation  | 29  | 15  | \$3,263    | 33 |
+-------------------------------------+-----+-----+------------+----+
| **Total GLA Program Increases**     | *   | **9 | **         |    |
|                                     | *19 | 7** | \$17,387** |    |
|                                     | 2** |     |            |    |
+-------------------------------------+-----+-----+------------+----+

**Immigration Litigation**

•        The Office of Immigration Litigation (OIL) defends and upholds
the Department of Homeland Security's (DHS) enforcement actions,
enabling the removal of thousands of illegal aliens. OIL's caseload has
increased drastically in recent years and has outpaced existing
resources. By FY 2008, the caseload is expected to reach a record level
of 25,000 cases -- nearly four times more cases than in FY 2002. The
main factors contributing to this growth are (1) DHS's heightened
enforcement efforts and (2) an increase in the rate at which aliens
appeal removal decisions to the federal courts.

-   As a stopgap measure to address the overwhelming number of cases,
    thousands of briefs have been reassigned to the Department's
    litigating components and to U.S. Attorneys' Offices (USAOs)
    nationwide.  The \"outsourcing\" of briefs forces these components
    and USAOs to divert time away from efforts crucial to the
    achievement of their primary missions. Additional resources will
    enable the centralization of all immigration cases within OIL. 

•         As part of the Emergency Supplemental Appropriations Act,
Congress appropriated \$9,000,000 for OIL, emphasizing the importance of
immigration enforcement. The attorneys and support staff hired under the
supplemental will be released when the funds expire later this year
unless additional resources are made available. OIL will be unable to
keep pace with DHS enforcement efforts thereby weakening the entire
immigration enforcement system and necessitating additional resources in
FY 2008.

•         Inadequate resources for OIL could result in: adverse
judgments leading to the release of criminal aliens; a decreased ability
to pursue a unified national strategy for immigration enforcement; and
an increased incentive for illegal aliens to attempt to enter the
country, undermining national security. Therefore, the Civil Division
requests 163 positions (124 attorneys), 82 FTE, and \$14,124,000 to
enable OIL to keep pace with the ever expanding immigration caseload.

**Guantanamo Bay Detainee Litigation**

-   Approximately 400 detainees are currently being held at the
    Guantanamo Bay Naval Base (GTMO). Through a process that includes a
    formal hearing before a military Combatant Status Review Tribunal
    (CSRT), almost all of the detainees have been determined to be enemy
    combatants. These enemy combatants have filed habeas corpus suits
    against the United States in the District Court for the District of
    Columbia.

-   The Detainee Treatment Act of 2005 (DTA) grants the United States
    Court of Appeals for the District of Columbia Circuit exclusive
    jurisdiction over challenges to the validity of any CSRT final
    determination.  Reinforcing the DTA, the Military Commissions Act of
    2006 replaces district court habeas jurisdiction with DTA review.

-   Based on these two Acts, the Government has asked that all currently
    pending habeas actions be dismissed. The approximately 400 detainees
    may, instead, file challenges to the CSRTs in the D.C. Circuit.
    Defending this litigation is the Civil Division's responsibility.

-   To handle this influx of complex GTMO cases, the Division will
    require a program increase of 29 positions (23 attorneys), 15 FTE,
    and \$3,263,000 in FY 2008.

**Appropriations Language and Analysis**

**of Appropriations Language\***

**Appropriations Language**

[]{.mark}

The FY 2008 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 [\[\$6,333,000\]]{.underline}
*[\$6,833,000]{.underline}*, to be appropriated from the Vaccine Injury
Compensation Trust Fund.

**Analysis of Appropriations Language**

Administered by the Department of Health and Human Services, the
Department of Justice, and the U.S. Court of Federal Claims, the Vaccine
Injury Compensation Program (VICP) is intended to provide a more
expeditious and less costly way for resolving claims. Administrative
expenses are funded through a reimbursement from the VICP Trust Fund.

In FY 2005, the Vaccine Injury Compensation Program was assessed through
the Office of Management and Budget's (OMB) Program Assessment Rating
Tool (PART) program and received a rating of "Adequate." The PART
assessment recommended an independent evaluation regarding
effectiveness, impact, and design. OMB stated, "The VICP has been
assessed many times by various internal and external evaluators, but no
single evaluation or group of evaluations together meet each of the
standards of quality, independence, scope and regularity. There is a
particular dearth of evaluations looking at overall program impact and
effectiveness; most existing evaluations focused either on process or on
only a portion of the program."

To implement the improvement plan recommended by OMB and to procure an
independent evaluation of VICP's effectiveness, impact, and design, the
Civil Division requests \$500,000.

*\* The FY 2008 President's Budget uses the FY 2007 President's Budget
language as a base so all language is presented as new.*

**Appropriations Language**

DEPARTMENT OF JUSTICE

FEES AND EXPENSES OF WITNESSES

For fees and expenses of witnesses, for expenses of contracts for the
procurement and supervision of expert witnesses, for private counsel
expenses, including advances, *and for expenses of foreign counsel,*
**\[**such sums as are necessary,**\]** *\$168,300,000,* to remain
available

until expended**\[**: *Provided*, That**\]***, of which* not to exceed
\$10,000,000 **\[**may be made available**\]** *is* for construction of
buildings for protected witness safesites**\[**: *Provided further*,
That**\]***;* not to exceed \$1,000,000 **\[**may be made
available**\]** *is* for the purchase and maintenance of armored
vehicles for transportation of protected witnesses**\[**: *Provided
further*, That**\]***; and* not to exceed \$9,000,000 **\[**may be made
available**\]** *is* for the purchase, installation, maintenance and
upgrade of secure telecommunications equipment and a secure automated
information network to store and retrieve the identities and locations
of protected witnesses. *(Department of Justice Appropriations Act,
2006.)*

**Analysis of Appropriations Language**

If agreed to by Congress, this change provides that foreign counsel fees
be charged to the Fees and Expenses of Witnesses (FEW) appropriation.

The Civil Division, under the direction of the Assistant Attorney
General, is the only litigating component of the Department of Justice
authorized to oversee litigation in foreign courts. Under 28 CFR § 0.46:
\"The Assistant Attorney General in charge of the Civil Division shall,
in addition to litigation coming within the scope of Sec. 0.45, direct
all other civil litigation including claims by or against the United
States, its agencies or officers, in domestic or foreign courts, special
proceedings, and similar civil matters not otherwise assigned, and shall
employ foreign counsel to represent before foreign criminal courts,
commissions or administrative agencies officials of the Department of
Justice and all other law enforcement officers of the United States who
are charged with violations of foreign law as a result of acts which
they performed in the course and scope of their Government service.\"

This regulation expressly authorizes the employ of foreign counsel in
certain criminal cases. Because the Division exercises sole
responsibility over foreign litigation, it must retain private foreign
counsel in all cases in which the United States is a party or has an
interest. The necessity to employ foreign counsel derives from the fact
that DOJ attorneys are not licensed to appear on behalf of the
Government in foreign courts.

This requirement is analogous to the requirement to retain private
counsel for constitutional tort cases. Specifically, DOJ attorneys may
not represent Government employees who are sued for actions taken while
performing the duties required by their jobs -- when such representation
would pose a conflict of interest between the defendants. In funding
private counsel expenses out of the Fees and Expenses of Witnesses
appropriation, Congress acknowledged that retention of private counsel
for constitutional torts cases is mandatory and, accordingly, its
funding source should be mandatory as well. Because the retention of
private foreign counsel is mandatory, it follows that these expenses
should also be funded out of the mandatory FEW appropriation.

**Decision Unit Justification**

**Civil Division: Legal Representation Decision Unit**

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

  2006 Enacted with Rescissions &         1,100      1,096     \$202,489
  Supplementals                                                

  Number range CHAPTER2007 Estimate       1,208      1,176     \$204,612

  Adjustments to Base & Technical         32         25        \$23,024
  Adjustments                                                  

  2008 Current Services                   1,176      1,201     \$227,636

  2008 Program Increases                  192        97        \$17,387

  2008 Request                            1,368      1,298     \$245,023

  **Number range CHAPTERTotal Change      **160**    **122**   **\$31,737**
  2007-2008**                                                  
  --------------------------------------- ---------- --------- --------------

The total change between the FY 2007 President's budget request and the
FY 2008 budget request is based on the standardized adjustments to base
and increases required to address the estimated workload increase
stemming from immigration enforcement and GTMO litigation.

The Civil Division is acutely aware of the resource limitations facing
the Government. However, the vigorous defense of cases that are of
paramount importance to the Administration must proceed successfully.
The United States should not suffer the detrimental impacts that could
arise from (1) an inability to promote the strongest possible
immigration enforcement efforts; or (2) a failure to defend legal
challenges filed by those detained at GTMO, many of whom are connected
to al Qaeda. With respect to GTMO, this issue is so hotly-contested that
additional appeals are extremely likely. If these cases cannot be
resolved at the circuit court level, the Supreme Court may hear
arguments. Depending on the outcome of these higher reviews, the
resource requirements for FY 2008 will be adjusted.

**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 element 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, prevention of
crime, and the resources available to the General Fund.

+------------------------------+---------------------------------------+
| **Four Main Areas of         |                                       |
| Litigation**                 |                                       |
+------------------------------+---------------------------------------+
| Number range                 | Number range CHAPTER**Contract and    |
| CHAPTER**DEFENSIVE           | Employment Claims,**                  |
| MONETARY**                   |                                       |
|                              | **Allegations of Negligence,**        |
|                              |                                       |
|                              | **Patent Infringement, Constitutional |
|                              | Torts**                               |
|                              |                                       |
|                              | **Nearly \$162.5 Billion at Issue in  |
|                              | FY 2006**                             |
+------------------------------+---------------------------------------+
| Number range                 | Number range CHAPTER**Health Care     |
| CHAPTER**AFFIRMATIVE         | Fraud, Procurement Fraud,**           |
| MONETARY**                   |                                       |
|                              | **Illegal Telemarketing Schemes,**    |
|                              |                                       |
|                              | **Loan Defaults, Bankruptcy,**        |
|                              |                                       |
|                              | **Nearly \$24.5 Billion at Issue in   |
|                              | FY 2006**                             |
+------------------------------+---------------------------------------+
| Number range                 | Number range CHAPTER**Challenges to   |
| CHAPTER**DEFENSE OF          | Federal Laws, Provisions of**         |
| PROGRAMS**                   |                                       |
|                              | **Entitlement Programs, Immigration   |
|                              | Decisions, Counterterrorism Measures, |
|                              | and Implementation of the Military    |
|                              | Commissions Act**                     |
+------------------------------+---------------------------------------+
| **Number range               | Number range CHAPTER**Prosecution of  |
| CHAPTERENFORCING CIVIL       | Consumer Protection Violations,       |
| STATUTES**                   | Enforcement of Inspector General      |
|                              | Subpoenas**                           |
+------------------------------+---------------------------------------+

In total, 53,821 cases and matters were assigned to the Civil Division
during FY 2006, 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 implementation of Federal statues. 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. The litigation handled by each Branch is
described throughout the following pages.

Appellate Staff attorneys represent the United States at the highest
levels of judicial review.

When trial losses involve policy-sensitive issues, the Division seeks
appellate review. The docket includes challenges to the No Child Left
Behind Act and to the policies of the Medicare and Medicaid programs.
The Staff also handles a host of counterterrorism cases involving
terrorist surveillance programs, 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 of 2006 (P.L. 109-366), which permits
Guantanamo Bay detainees to challenge their status as enemy combatants.
Several GTMO suits have already reached the appellate courts and
approximately 400 GTMO cases may be filed in the U.S. Court of Appeals
for the District of Columbia Circuit. These suits will require extensive
involvement of the Appellate Staff (see page 33).

Other cases reaching the appellate level often have tremendous financial
stakes. For example, several other large cases have involved attempts to
seize over \$1 billion in Iraqi and Iranian Government assets held by
the U.S. These suits not only have high financial stakes, but their
outcomes will establish important precedents with far-reaching effects
on U.S. diplomatic relations and foreign policy.

The Federal Programs Branch annually handles hundreds of defensive cases
that are of unparalleled importance because of their far-reaching
repercussions for Government programs and policies. For example, Federal
Programs attorneys defend challenges to executive orders and Federal
statutes, such as the Equal Pay Act and the Child Online Protection Act.
In addition, the Branch's docket also includes a growing number of
challenges to antiterrorism laws and national security measures -- most
notably the habeas corpus actions filed on behalf of Guantanamo Bay
detainees.

While other Branches handle cases that directly involve the defense of
monetary claims and the recovery of monies owed to the Government,
Federal Programs protects the public fisc by defending Government
policies and programs involving the distribution of monetary resources
and benefits. For instance, branch attorneys are defending multiple
suits filed on behalf of minority farmers who allege discrimination in
credit and benefit programs administered by the U.S. Department of
Agriculture. Plaintiffs in these cases seek more than \$40 billion in
damages.

In FY 2006, the Torts Branch handled over 20,878 cases and
administrative claims with almost \$23 billon at issue. The caseload
includes traditional tort suits, such as alleged malpractice at Federal
medical facilities and other personal injury suits filed under the
Federal Tort Claims Act (FTCA). Among the many issues faced by the
Federal Government is how to deal with environmental contamination
caused by important national defense activities. Congress has provided
funds to clean up such contamination. However, tort suits are brought
against the United States, seeking damages above and beyond the funds
provided. The Civil Division works diligently to protect the public fisc
when such lawsuits lack legal merit. In addition, the Torts Branch is
responsible for aviation and maritime accident litigation, both of which
produce high-dollar cases and large evidentiary collections.

![](media/image3.jpeg){width="2.75in"
height="2.415277777777778in"}Hurricane Katrina was the costliest and one
of the deadliest hurricanes in the history of the United States. As a
result of the destruction caused by this disaster approximately 26,000
administrative claims have been filed with the U.S. Army Corps of
Engineers and more than 50 tort suits are pending in district courts. In
total, the claimants seek \$150 billion. Thousands more claims are
expected to be filed against the Corps and numerous claims are also
expected to be filed against the Federal Emergency Management Agency and
the U.S. Coast Guard. Given the huge financial stakes, the important
legal precedents, and the extreme contentiousness surrounding the events
that followed this disaster, claims will be appealed in Federal courts
and thousands of cases may become the responsibility of the Civil
Division's Tort Branch. Fundamental

questions of liability may ultimately have to be resolved by the Supreme
Court.

Torts attorneys also handle *Bivens* cases, which involve Federal
employees who are personally sued for actions taken within the scope of
their employment. For example, in *Mayfield v. Gonzales*, plaintiff
filed charges against the Attorney General challenging the
Administration\'s actions in the investigation of the Madrid train
bombings in 2004. Effective representation of such employees allows
public servants to carry out their duties without fear of personal
liability for their actions.

The Civil Division's two compensation programs, the Radiation Exposure
Compensation Program and the Vaccine Injury Compensation Program, fall
within the responsibility of the Torts Branch. More detail on these
programs may be found on pages 15-18.

In FY 2006, the Branch handled nearly 9,106 active cases with \$159.8
billion at issue.[^3] The most significant of these suits are claims
filed in the Court of Federal Claims and the Court of Appeals for the
Federal Circuit, which are national courts located in Washington, D.C.
These cases often involve protracted proceedings, high monetary stakes,
complex damage theories, and huge evidentiary collections.

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. In another massive group of
lawsuits, Yankee Atomic Electric and other commercial nuclear utilities
have filed 66 claims, known collectively as the Spent Nuclear Fuel
litigation. Plaintiffs in these suits allege a multi-billion dollar
breach of contract against the Department of Energy for its failure to
accept and store spent nuclear fuel. One of the largest defensive cases
being handled by Commercial attorneys is *Cobell v. Kempthorne*, 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.

Commercial attorneys are also responsible for representing the United
States in litigation filed outside of Washington, D.C. For example, the
Court of International Trade, a national court located in New York City,
is the venue for the thousands of Harbor Maintenance Tax Cases. In
addition, the Office of Foreign Litigation attorneys manage and retain
foreign counsel to represent the U.S. in cases filed in foreign courts.
Most of these cases are defensive and arise from a range of actions
including military redeployments and commercial transactions. The
Office's affirmative efforts are primarily 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. Affirmative litigation enforces Government-owned
patents, trademarks, copyrights, and patent indemnity agreements.

Through affirmative litigation, Commercial Litigation attorneys recover
losses from those who perpetrate fraud against the Government and misuse
taxpayers' monies. Working with the U.S. Attorneys' Offices, branch
attorneys recover 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.

A significant portion of these cases are known collectively as the
"Pharma" litigation, which concerns filings under the False Claims Act
alleging various types of fraud in the pricing and sale of
pharmaceutical products paid by Federal health care programs. These
claims are highly complex both legally and factually, and often involve
allegations, named defendants, and witnesses from across multiple
judicial districts. The Division's role is the key to ensuring that
investigations and litigation are properly coordinated among Federal and
state entities in all cases. To this end, the Commercial Frauds Staff is
responsible for supervising the investigative work of many Federal
investigative organizations and working closely with other Federal
Government attorneys, as well as State Attorneys General and law
enforcement partners. Over the past seven years, about \$5 billion has
been recovered in Pharma matters, including \$1.2 billion in 2006 alone.

![](media/image4.png){width="1.060236220472441in"
height="0.6692913385826772in"}

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. For instance, a Denver grand jury charged Gary Lee Sutton with a
22-count indictment, alleging that Sutton purchased high-mileage
vehicles at auction, rolled back the odometers to false, low mileages,
fraudulently obtained false Colorado or Arizona titles, and then sold
the used cars to dealers in Colorado and elsewhere. Success in cases
such as these safeguard consumers from dangerous or worthless products,
and from unfair and deceptive trade practices.

The Office defends challenges to consumer protection laws. Such suits
include those filed by major drug manufacturers challenging the Food and
Drug Administration's (FDA) approval of generic versions of some of the
most widely-used, name-brand medications. For example, in *Biovail
Laboratories v. FDA*, the plaintiff, a name brand manufacturer, claimed
that the FDA's approval of a generic drug for the antidepressant,
Wellbutrin, XL, violated their right to a thirty month stay of generic
competition. The issue, decided on December 21, 2006, was whether
Biovail's right to a thirty month stay covered this specific generic
drug. The district court agreed with the FDA that it did not, and upheld
the FDA's approval of the generic competition.

Most of the Office's cases, however, are affirmative and are filed on
behalf of the Food and Drug Administration, 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 exploit billions of dollars from
unsuspecting consumers through unfair credit practices and deceptive
advertisements and sales. A growing number of lawsuits seek recoveries
in connection with health care fraud. All together, the Office's
affirmative litigation generates hundreds of millions of dollars in
recoveries for the United States.

Established in 1983 to achieve central control over immigration
litigation, OIL upholds the enforcement actions of the Department of
Homeland Security.  With its unique expertise in immigration law,
OIL provides the Government with the best possible defense against
challenges to removal orders filed in circuit courts by illegal aliens,
many of whom are criminals.  

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. Number range CHAPTEROIL has developed substantial
expertise relating to terrorism and alien terrorists, and will continue
to vigorously defend counterterrorism efforts. Department of Homeland
Security's Customs and Border Protection and Immigration and Customs
Enforcement divisions estimate that more than 11 million illegal aliens
reside in the United States. It is therefore not surprising thatNumber
range CHAPTER the 20,000 immigration cases filed in the Federal courts
in FY 2006 more than tripled the number of cases filed in FY 2001. 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
Department's Civil Division. Vigorous defense of these cases is critical
to national security and the safety of our communities.

  -----------------------------------------------------------------------
  **Compensation Programs**

  -----------------------------------------------------------------------

**Number range CHAPTERVaccine Injury Compensation Program** When tort
claims are brought under the FTCA, plaintiffs must establish Government
liability and damages. Congress recognized that it is not always
appropriate for all such tort claims to meet the requirements of the
FTCA. For instance, the Vaccine Injury Compensation Program (VICP) was
created in 1986 by the National Childhood Vaccine Injury Act to
encourage childhood vaccination by providing a streamlined system for
compensation in rare instances when an injury results. Under the VICP,
individuals claiming injury from a covered vaccine file a petition for
no-fault compensation with the U.S. Court of Federal Claims (CFC),
rather than filing a lawsuit against the vaccine manufacturer or
administrator in the civil tort system. The Department of Health and
Human Services (HHS) is the named "respondent" in all cases and is the
general administrator of the Program. Civil Division attorneys in the
Torts Branch represent HHS before the special masters in the Court of
Federal Claims. 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 of the court
conduct hearings as necessary to determine whether a petitioner is
entitled to compensation and, if so, how much.

![](media/image5.wmf)The Act created a Vaccine Injury Compensation Trust
Fund that is used for the payment of awards to individuals injured by
vaccines, in addition to claimants' attorneys' fees. The Trust Fund is
funded by an excise tax imposed on each dose of covered vaccine
purchased. Funds are adequate for payment to eligible petitioners. Trust
Fund monies also pay the administrative costs of HHS, the Civil
Division's VICP staff, and the Office of Special Masters of the CFC.
Specifically, the Civil Division receives its funding through a
reimbursement from HHS. The current reimbursement authority is
\$6,333,000 (41 FTE).

Over the past several years, the number of vaccine claims filed with the
Program has increased dramatically (see chart on previous page). Over
750 new cases were filed in FY 2005, and approximately 1,300 were filed
in FY 2004, compared with just 213 filings in FY 2001. Driving the
caseload growth are thousands of cases alleging injuries caused by the
vaccine preservative thimerosal.

In total, more than \$1.6 billion in compensation has been awarded to
over 2,000 claimants who would have stood little chance of recovery in
traditional tort litigation. In addition, the Program has greatly
reduced costly litigation against drug manufacturers and health care
professionals who administer vaccines. Although an individual who is
dissatisfied with the Court's final judgment can reject it and file a
lawsuit in state or Federal court, very few such lawsuits have been
filed since the Program began. The supply of vaccines in the U.S. has
been stabilized, and the development of new vaccines has markedly
increased.

In FY 2005, OMB used their Program Assessment Rating Tool to evaluate
the Departments of Health and Human Services and Justice's respective
roles in administering the Program. The Program received a rating of
"Adequate" and is working to follow up on the various improvement
actions recommended by OMB. For more information, see page 38.

**Radiation Exposure Compensation Act (RECA)** In passing 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 causality. 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, 25,696 claims have
been filed and more than \$1.1 billion has been awarded to 16,867
claimants (as of January 3, 2007). 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.

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 2005 study published by the National Academy of Sciences 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 introduced in the previous 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 39.

![](media/image6.jpeg){width="7.622916666666667in"
height="5.563194444444444in"}

<table>
<colgroup>
<col style="width: 7%" />
<col style="width: 20%" />
<col style="width: 4%" />
<col style="width: 6%" />
<col style="width: 4%" />
<col style="width: 6%" />
<col style="width: 4%" />
<col style="width: 6%" />
<col style="width: 4%" />
<col style="width: 12%" />
<col style="width: 5%" />
<col style="width: 15%" />
</colgroup>
<tbody>
<tr class="odd">
<td colspan="12">Number range CHAPTER<strong>PERFORMANCE AND RESOURCES
TABLE</strong></td>
</tr>
<tr class="even">
<td colspan="12"><strong>Number range CHAPTERDecision Unit: Department
of Justice – Civil Division – Legal RepresentationNumber range
CHAPTERNumber range CHAPTER</strong></td>
</tr>
<tr class="odd">
<td colspan="12"><p><strong>DOJ Strategic Goal II: Enforce Federal Laws
and Represent the Rights and Interests of the American
People.</strong></p>
<p>Number range CHAPTER<strong>Objective 2.5:</strong> <strong>Enforce
Federal statutes, uphold the rule of law, and vigorously represent the
interests of the United States in all matters for which the Department
has jurisdiction.</strong></p></td>
</tr>
<tr class="even">
<td colspan="2"><strong>Number range CHAPTERWORKLOAD/
RESOURCES</strong></td>
<td colspan="2"><strong>Final Target</strong></td>
<td colspan="2"><strong>Actual</strong></td>
<td colspan="2"><strong>Estimate</strong></td>
<td colspan="2"><strong>Changes</strong></td>
<td colspan="2"><strong>Requested (Total)</strong></td>
</tr>
<tr class="odd">
<td colspan="2"></td>
<td colspan="2"><strong>FY 2006</strong></td>
<td colspan="2"><strong>FY 2006</strong></td>
<td colspan="2"><strong>FY 2007</strong></td>
<td colspan="2"><strong>Current Services Adjustments and FY 2008 Program
Changes</strong></td>
<td colspan="2"><strong>FY 2008 Request</strong></td>
</tr>
<tr class="even">
<td rowspan="3"><strong>Workload</strong></td>
<td><p>Number range CHAPTER1. Number of cases pending</p>
<p>beginning of year</p></td>
<td colspan="2">36, 541<mark>Number range CHAPTER</mark></td>
<td colspan="2">35,231<mark>Number range CHAPTER</mark></td>
<td colspan="2">40,236<mark>Number range CHAPTER</mark></td>
<td colspan="2">2,903</td>
<td colspan="2">43,139</td>
</tr>
<tr class="odd">
<td><p>Number range CHAPTER2. Number of cases received during</p>
<p>the year</p></td>
<td colspan="2">19,446</td>
<td colspan="2">18,590</td>
<td colspan="2">21,062</td>
<td colspan="2">801</td>
<td colspan="2">21,863</td>
</tr>
<tr class="even">
<td>Number range CHAPTER3. Total workload</td>
<td colspan="2">55,987</td>
<td colspan="2">53,821</td>
<td colspan="2">61,298</td>
<td colspan="2">3,704</td>
<td colspan="2">65,002</td>
</tr>
<tr class="odd">
<td colspan="2" rowspan="2"><p><strong>Number range CHAPTERTotal Costs
and FTE</strong></p>
<p>Includes $2.3 million for administrative expenses associated with the
RECA Program in FY 2006</p>
<p>(Reimbursable FTE are included, but reimbursable costs are bracketed
and not included in the total)</p></td>
<td><strong>FTE</strong></td>
<td><strong>$000</strong></td>
<td><strong>FTE</strong></td>
<td><strong>$000</strong></td>
<td><strong>FTE</strong></td>
<td><strong>$000</strong></td>
<td><strong>FTE</strong></td>
<td><strong>$000</strong></td>
<td><strong>FTE</strong></td>
<td><strong>$000</strong></td>
</tr>
<tr class="even">
<td>1,137Number range CHAPTER</td>
<td><p>$192,864</p>
<p>[$96,007]Number range CHAPTER</p></td>
<td>1,006Number range CHAPTER</td>
<td><p>$212,004</p>
<p>[$86,487]Number range CHAPTER</p></td>
<td>1,217Number range CHAPTER</td>
<td><p>$204,612</p>
<p>[$65,107]</p></td>
<td>97Number range CHAPTER</td>
<td><p>$17,387</p>
<p>[$7,771]</p></td>
<td>1,339Number range CHAPTER</td>
<td><p>$245,023</p>
<p>[$57,336]</p></td>
</tr>
<tr class="odd">
<td>Number range CHAPTER<strong>TYPE/ Strategic Objective</strong></td>
<td><strong>PERFORMANCE</strong></td>
<td colspan="2"><strong>FY 2006</strong></td>
<td colspan="2"><strong>FY 2006</strong></td>
<td colspan="2"><p><strong>FY 2007</strong></p>
<p><strong>President’s Budget</strong></p></td>
<td colspan="2"><strong>Current Services Adjustments and FY 2008 Program
Changes</strong></td>
<td colspan="2"><strong>FY 2008 Request</strong></td>
</tr>
<tr class="even">
<td>Number range CHAPTER<strong>Output</strong></td>
<td><p>Number range CHAPTER1. Number of cases terminated</p>
<p>during the year</p></td>
<td colspan="2">15,528Number range CHAPTER</td>
<td colspan="2">13,585Number range CHAPTER</td>
<td colspan="2">18,159Number range CHAPTER</td>
<td colspan="2">8,377</td>
<td colspan="2">26,536</td>
</tr>
<tr class="odd">
<td></td>
<td colspan="11"><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><p>2. Number range CHAPTERPercent of civil cases favorably</p>
<p>resolved</p></td>
<td colspan="2">80%</td>
<td colspan="2">93%</td>
<td colspan="2">80%</td>
<td colspan="2">…</td>
<td colspan="2">80%</td>
</tr>
<tr class="odd">
<td><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="2">80%</td>
<td colspan="2">91%</td>
<td colspan="2">80%</td>
<td colspan="2">…</td>
<td colspan="2">80%</td>
</tr>
<tr class="even">
<td><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="2">60%</td>
<td colspan="2">72%</td>
<td colspan="2">60%</td>
<td colspan="2">…</td>
<td colspan="2">60%</td>
</tr>
<tr class="odd">
<td><p>5. Number range CHAPTERPercent of favorable resolutions</p>
<p>in non-monetary trial cases</p></td>
<td colspan="2">80%</td>
<td colspan="2">92%</td>
<td colspan="2">80%</td>
<td colspan="2">…</td>
<td colspan="2">80%</td>
</tr>
<tr class="even">
<td><p>6. Number range CHAPTERPercent of favorable resolutions</p>
<p>in non-monetary appellate cases</p></td>
<td colspan="2">85%</td>
<td colspan="2">87%</td>
<td colspan="2">85%</td>
<td colspan="2">…</td>
<td colspan="2">85%</td>
</tr>
<tr class="odd">
<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 colspan="2">$61</td>
<td colspan="2">$60</td>
<td colspan="2">$62</td>
<td colspan="2">…</td>
<td colspan="2">$63</td>
</tr>
</tbody>
</table>

+----+-------------+-------+-------+-------+---------+-------------+
| *  |             |       |       |       |         |             |
| *P |             |       |       |       |         |             |
| ER |             |       |       |       |         |             |
| FO |             |       |       |       |         |             |
| RM |             |       |       |       |         |             |
| AN |             |       |       |       |         |             |
| CE |             |       |       |       |         |             |
| A  |             |       |       |       |         |             |
| ND |             |       |       |       |         |             |
| R  |             |       |       |       |         |             |
| ES |             |       |       |       |         |             |
| OU |             |       |       |       |         |             |
| RC |             |       |       |       |         |             |
| ES |             |       |       |       |         |             |
| T  |             |       |       |       |         |             |
| AB |             |       |       |       |         |             |
| LE |             |       |       |       |         |             |
| (  |             |       |       |       |         |             |
| CO |             |       |       |       |         |             |
| NT |             |       |       |       |         |             |
| IN |             |       |       |       |         |             |
| UE |             |       |       |       |         |             |
| D) |             |       |       |       |         |             |
| ** |             |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
| ** |             | **    | **Act | **    | **Ch    | **Requested |
| Nu |             | Final | ual** | Estim | anges** | (Total)**   |
| mb |             | Tar   |       | ate** |         |             |
| er |             | get** |       |       |         |             |
| r  |             |       |       |       |         |             |
| an |             |       |       |       |         |             |
| ge |             |       |       |       |         |             |
| C  |             |       |       |       |         |             |
| HA |             |       |       |       |         |             |
| PT |             |       |       |       |         |             |
| ER |             |       |       |       |         |             |
| ** |             |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
| Nu | **PE        | **FY  | **FY  | **FY  | **      | **FY 2008   |
| mb | RFORMANCE** | 2     | 2     | 2     | Current | Request**   |
| er |             | 006** | 006** | 007** | S       |             |
| r  |             |       |       |       | ervices |             |
| an |             |       |       |       | Adju    |             |
| ge |             |       |       |       | stments |             |
| CH |             |       |       |       | and FY  |             |
| AP |             |       |       |       | 2008    |             |
| TE |             |       |       |       | Program |             |
| R* |             |       |       |       | Ch      |             |
| *T |             |       |       |       | anges** |             |
| YP |             |       |       |       |         |             |
| E/ |             |       |       |       |         |             |
| S  |             |       |       |       |         |             |
| tr |             |       |       |       |         |             |
| at |             |       |       |       |         |             |
| eg |             |       |       |       |         |             |
| ic |             |       |       |       |         |             |
| O  |             |       |       |       |         |             |
| bj |             |       |       |       |         |             |
| ec |             |       |       |       |         |             |
| ti |             |       |       |       |         |             |
| ve |             |       |       |       |         |             |
| ** |             |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
|    | **Vaccine   |       |       |       |         |             |
|    | Injury      |       |       |       |         |             |
|    | C           |       |       |       |         |             |
|    | ompensation |       |       |       |         |             |
|    | Program**   |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
| ** | 8\.         | 80%   | 82%   | 83%   | ...     | 86%         |
| Ou | Percentage  |       |       |       |         |             |
| tp | of cases    |       |       |       |         |             |
| ut | where the   |       |       |       |         |             |
| ** |             |       |       |       |         |             |
|    | deadline    |       |       |       |         |             |
|    | for filing  |       |       |       |         |             |
|    | the         |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | G           |       |       |       |         |             |
|    | overnment's |       |       |       |         |             |
|    | response to |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | pe          |       |       |       |         |             |
|    | titioner\'s |       |       |       |         |             |
|    | complaint   |       |       |       |         |             |
|    | (the Rule   |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | (4b)        |       |       |       |         |             |
|    | report) is  |       |       |       |         |             |
|    | met once    |       |       |       |         |             |
|    | the case    |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | has been    |       |       |       |         |             |
|    | deemed      |       |       |       |         |             |
|    | complete    |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
|    | 9\. Median  | 500   | 335   | 485   | ...     | 475         |
|    | time to     |       |       |       |         |             |
|    | process an  |       |       |       |         |             |
|    | award       |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | for damages |       |       |       |         |             |
|    | (in days)   |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
| *  | 10\.        | 0%    | 0%    | 0%    | ...     | 0%          |
| *O | Percentage  |       |       |       |         |             |
| ut | of cases in |       |       |       |         |             |
| co | which       |       |       |       |         |             |
| me |             |       |       |       |         |             |
| ** | judgment    |       |       |       |         |             |
|    | awarding    |       |       |       |         |             |
|    | c           |       |       |       |         |             |
|    | ompensation |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | is rejected |       |       |       |         |             |
|    | and an      |       |       |       |         |             |
|    | election to |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | pursue a    |       |       |       |         |             |
|    | civil       |       |       |       |         |             |
|    | action is   |       |       |       |         |             |
|    | filed       |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
|    | 11\.        | 1,005 | 834   | 1,213 | ...     | 1,433       |
|    | Average     |       |       |       |         | []{.mark}   |
|    | claim       |       |       |       |         |             |
|    | processing  |       |       |       |         |             |
|    | time        |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | (in days)   |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
| ** | 12\.        | 90%   | 98%   | 92%   | ...     | 92%         |
| Ef | Percentage  |       |       |       |         |             |
| fi | of cases in |       |       |       |         |             |
| ci | which       |       |       |       |         |             |
| en |             |       |       |       |         |             |
| cy | settlements |       |       |       |         |             |
| ** | are         |       |       |       |         |             |
|    | completed   |       |       |       |         |             |
|    | within      |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | the         |       |       |       |         |             |
|    | co          |       |       |       |         |             |
|    | urt-ordered |       |       |       |         |             |
|    | 15 weeks    |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
| [  | **Radiation |       |       |       |         |             |
| ]{ | Exposure    |       |       |       |         |             |
| .m | C           |       |       |       |         |             |
| ar | ompensation |       |       |       |         |             |
| k} | Program**   |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
| ** | 13\. Reduce | (10%) | .5%   | (20%) | ...     | (30%)       |
| Ef | backlog of  |       |       |       |         |             |
| fi | pending     | 1,819 | 2,032 | 1,617 |         | 1,415       |
| ci |             | c     | c     | c     |         | claims      |
| en | claims by   | laims | laims | laims |         |             |
| cy | 60% by FY   |       |       |       |         |             |
| ** | 2011        |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
| ** | 14\. Reduce | 297   | 339   | 277   | ...     | 258         |
| Ou | average     |       |       |       |         |             |
| tp | claim       |       |       |       |         |             |
| ut | processing  |       |       |       |         |             |
| ** |             |       |       |       |         |             |
|    | time to 200 |       |       |       |         |             |
|    | days by FY  |       |       |       |         |             |
|    | 2011        |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
|    | 15\.        | 70%   | 71%   | 75%   | ...     | 80%         |
|    | Percentage  |       |       |       |         |             |
|    | of claims   |       |       |       |         |             |
|    | paid within |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | six weeks   |       |       |       |         |             |
|    | of Program  |       |       |       |         |             |
|    | receipt of  |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | acceptance  |       |       |       |         |             |
|    | form        |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
|    | 16\.        | 85%   | 100%  | 88%   | ...     | 90%         |
|    | Percentage  |       |       |       |         |             |
|    | of claims   |       |       |       |         |             |
|    | appeals     |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | adjudicated |       |       |       |         |             |
|    | within 90   |       |       |       |         |             |
|    | days of     |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | filing      |       |       |       |         |             |
|    | adm         |       |       |       |         |             |
|    | inistrative |       |       |       |         |             |
|    | appeal      |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+
|    | 17\.        | 71%   | 66%   | 71%   | ...     | 71%         |
|    | Percentage  |       |       |       |         |             |
|    | of claims   |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | adjudicated |       |       |       |         |             |
|    | within 12   |       |       |       |         |             |
|    | months      |       |       |       |         |             |
|    |             |       |       |       |         |             |
|    | or less     |       |       |       |         |             |
|    | (RECA)      |       |       |       |         |             |
+----+-------------+-------+-------+-------+---------+-------------+

+-----------------------------------------------------------------------+
| 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   |
|     U.S. Attorneys' Offices were involved.                            |
|                                                                       |
| -   Number range CHAPTER**Performance Indicators 2, 5, and 6:**       |
|     Favorable resolutions include only court judgments in favor of    |
|     the Government; settlements are excluded.                         |
|                                                                       |
| -   **All Workload and Performance Indicators:** All workload actuals |
|     and workload estimates exclude more than 9,000 Harbor Maintenance |
|     Tax Cases. These cases have been removed to avoid skewing the     |
|     data.                                                             |
+-----------------------------------------------------------------------+
| **ISSUES AFFECTING FY 2006 Performance**                              |
+-----------------------------------------------------------------------+
| -   **Performance Indicator 1:** The number of cases terminated in FY |
|     2006 was lower than estimated due to the unpredictable nature of  |
|     litigation. For example, the timing of judgments and other court  |
|     decisions are up to the judge's discretion. Excluded from the     |
|     data in the above table were 9,004 Harbor Maintenance Tax cases,  |
|     which were resolved due to a ruling in the lead case.             |
|                                                                       |
| -   **Performance Indicator 7:** Reported values are averages for     |
|     three fiscal years. Thus, the FY 2006 target represents fiscal    |
|     years 2004-2006. Approximately 90 percent of total dollars        |
|     defeated and recovered is the result of the Division's defensive  |
|     work. Thus, the annual amount saved through litigation is driven  |
|     largely by the amount sought in court by the Government's         |
|     opponents -- a metric that is extremely difficult to predict. The |
|     Division did not meet its FY 2006 target because it is impossible |
|     to predict accurately the number and value of cases that will be  |
|     resolved in a given year. In addition, recoveries in affirmative  |
|     cases are dependent upon the defendant's ability to pay (i.e.     |
|     bankruptcy cases).                                                |
|                                                                       |
| -   **Performance Indicators 13, 14, and 17:**  Processing times for  |
|     on-site participants have increased as a result of the extended   |
|     periods of time requested by the claimants to elect whether to    |
|     accept the RECA award or an award pursuant to the Energy          |
|     Employees Occupational Illness Compensation Program Act           |
|     (EEOICPA). According to the RECA statute, if on-site participant  |
|     claimants accept an award under RECA, they will not be eligible   |
|     to receive any payment or medical benefits under EEOICPA, even    |
|     though they may qualify. Therefore, these claimants are provided  |
|     with sufficient time in which to make this election. Also         |
|     affecting the FY 2006 results was a reduced staffing level for    |
|     most of the year. The Program lost five employees due to normal   |
|     attrition and absent adequate staff, claim processing times       |
|     increased, the backlog of pending claims grew, and fewer claims   |
|     were adjudicated within 12 months than anticipated.  By the end   |
|     of FY 2006, the Program had hired six additional staff to assist  |
|     in claims adjudication.  Claim processing time is improving and   |
|     the Program hopes to meet its targets in FY 2007 and FY 2008.     |
+-----------------------------------------------------------------------+
| **ISSUES AFFECTING SELECTION OF FY 2007 AND FY 2008 ESTIMATES**       |
+-----------------------------------------------------------------------+
| -   Number range CHAPTER**Workload Indicators 1, 2, and 3:** The      |
|     workload is measured by tracking the sum of cases pending at the  |
|     beginning of the year and new cases that the Division receives.   |
|     Hundreds of thousands of potential Hurricane Katrina-related      |
|     suits have been excluded from the workload indicators because     |
|     they are an outlier that skews trend lines. Because 90 percent of |
|     the Division\'s caseload is defensive, the size of the workload   |
|     is externally driven. Between FY 2006 and FY 2008, the workload   |
|     is expected to increase by 21 percent. This increase is primarily |
|     the result of pending immigration and vaccine cases, as well as   |
|     additional Guantanamo Bay detainee--related cases, all of which   |
|     are defensive and are beyond the Division\'s control.             |
|                                                                       |
| -   Number range CHAPTER**Performance Indicator 1:** The number of    |
|     terminations is a performance measure that is directly linked to  |
|     resources: increased funding provides the staff needed to resolve |
|     more cases, and at a faster rate. In FY 2008, there will be an    |
|     estimated 3,038 additional terminations as the result of the      |
|     requested OIL program increase.                                   |
|                                                                       |
| -   **Performance Indicators 2 and 3:** Vaccine Injury Compensation   |
|     Program cases are excluded from these measures.                   |
|                                                                       |
| -   **Performance Indicators 2 and 7-17:** In line with the PMA       |
|     initiative to integrate budget and performance fully, the Civil   |
|     Division has developed several new outcome-oriented performance   |
|     measures.                                                         |
+-----------------------------------------------------------------------+

<table style="width:100%;">
<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: 5%" />
<col style="width: 6%" />
<col style="width: 6%" />
<col style="width: 0%" />
<col style="width: 6%" />
</colgroup>
<tbody>
<tr class="odd">
<td colspan="13">Number range CHAPTER<strong>PERFORMANCE MEASURE
TABLE</strong></td>
</tr>
<tr class="even">
<td colspan="13">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 2000</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 colspan="2"><strong>FY 2006</strong></td>
<td><strong>FY 2007</strong></td>
<td colspan="2"><strong>FY 2008</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>Final Target</strong></td>
<td><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>8,518</td>
<td>9,902</td>
<td>12,231</td>
<td>12,154</td>
<td>15,101</td>
<td>15,727</td>
<td>15,528</td>
<td>15,179</td>
<td>18,522</td>
<td colspan="2">22,051</td>
</tr>
<tr class="even">
<td></td>
<td colspan="12"><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>87%</td>
<td>93%</td>
<td>93%</td>
<td>94%</td>
<td>93%</td>
<td>90%</td>
<td>80%</td>
<td>80%</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>84%</td>
<td>86%</td>
<td>89%</td>
<td>90%</td>
<td>90%</td>
<td>80%</td>
<td>80%</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>71%</td>
<td>66%</td>
<td>64%</td>
<td>66%</td>
<td>65%</td>
<td>72%</td>
<td>60%</td>
<td>60%</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>74%</td>
<td>80%</td>
<td>85%</td>
<td>86%</td>
<td>84%</td>
<td>89%</td>
<td>80%</td>
<td>80%</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>89%</td>
<td>92%</td>
<td>93%</td>
<td>91%</td>
<td>85%</td>
<td>85%</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>$59</td>
<td>$72</td>
<td>$79</td>
<td>$64</td>
<td>$67</td>
<td>$60</td>
<td>$61</td>
<td>$61</td>
<td>$62</td>
<td colspan="2">$63</td>
</tr>
<tr class="odd">
<td></td>
<td colspan="12"><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>N/A</td>
<td>75%</td>
<td>84%</td>
<td>80%</td>
<td>82%</td>
<td colspan="2">83%</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>N/A</td>
<td>533</td>
<td>564.5</td>
<td>529.5</td>
<td>484</td>
<td>500</td>
<td>335</td>
<td colspan="2">485</td>
<td>475</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>N/A</td>
<td>0%</td>
<td>1.5%</td>
<td>0%</td>
<td>0%</td>
<td>0%</td>
<td>0%</td>
<td colspan="2">0%</td>
<td>0%</td>
</tr>
</tbody>
</table>

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\* The number of terminations has been updated to reflect the removal of
the 9,004 Harbor Maintenance Tax cases from the workload statistics.

<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: 5%" />
<col style="width: 6%" />
<col style="width: 6%" />
<col style="width: 6%" />
</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 2000</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 colspan="2"><strong>FY 2006</strong></td>
<td><strong>FY 2007</strong></td>
<td><strong>FY 2008</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><p><strong>Final</strong></p>
<p><strong>Target</strong></p></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>N/A</td>
<td>995</td>
<td>1,021</td>
<td>738</td>
<td>894</td>
<td>1,005</td>
<td>834</td>
<td>1,213</td>
<td>1,433</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>N/A</td>
<td>80%</td>
<td>92%</td>
<td>80%</td>
<td>95%</td>
<td>90%</td>
<td>98%</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 60%</p>
<p>by FY 2011</p></td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>2,021</td>
<td><p>(10%)</p>
<p>1,819</p></td>
<td><p>.5%</p>
<p>2,032</p></td>
<td><p>(20%)</p>
<p>1,617</p></td>
<td><p>(30%)</p>
<p>1,415</p></td>
</tr>
<tr class="even">
<td></td>
<td><p>14. Reduce average claim processing time to</p>
<p>200 days by FY 2011</p></td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>316</td>
<td>297</td>
<td>339</td>
<td>277</td>
<td>258</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>N/A</td>
<td>37%</td>
<td>51%</td>
<td>63%</td>
<td>70%</td>
<td>71%</td>
<td>75%</td>
<td>80%</td>
</tr>
<tr class="even">
<td></td>
<td><p>17. Percentage of claims appeals adjudicated</p>
<p>within 90 days of filing administrative</p>
<p>appeal</p></td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>N/A</td>
<td>77%</td>
<td>84%</td>
<td>85%</td>
<td>100%</td>
<td>88%</td>
<td>90%</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>74%</td>
<td>88%</td>
<td>64%</td>
<td>74%</td>
<td>55%</td>
<td>71%</td>
<td>71%</td>
<td>66%</td>
<td>71%</td>
<td>71%</td>
</tr>
</tbody>
</table>

**Performance, Resources, and Strategies**

**Performance Plan and Report for Outcomes**

![](media/image7.wmf)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
2.5 to "enforce Federal statutes, uphold the rule of law, and vigorously
represent the interests of the United States in all matters for which
the Department has jurisdiction." The following cases summaries are
highlights of how Civil has worked to protect the public fisc, defend
U.S. policies, and enforce civil statutes in FY 2006.

Between FY 2002 and FY 2006, more than \$71 billion was saved as a
result of the Civil Division\'s successful defense against unmeritorious
claims. In FY 2006 alone, the Division defeated over \$11 billion in
exaggerated claims. Significant victories include the following:

-   ***[Winstar]{.underline}*** Of the 93 cases fully resolved to date,
    73 resulted in zero damages paid to the plaintiff. For example, an
    appellate court affirmed the trial court's judgment rejecting
    damages exceeding \$420 million in *Granite Management Corp. v.
    United States*. Granite Management had sued the United States
    alleging breach of contract and related claims.

-   ***[Property Damage]{.underline}*** A large housing developer
    accused the Government of negligently closing Hamilton Air Force
    Base and allowing landfill waste to damage property purchased after
    the base closure. A district court dismissed the \$100 million
    claim.

![](media/image8.wmf)

Over the last five years, the Division has also made significant
affirmative recoveries totaling nearly \$12 billion. Most were the
result of procurement and health care fraud matters. The following cases
are particularly noteworthy:

-   ***[Health Care Fraud]{.underline}*** In June 2006, two health care
    corporations settled allegations of health care fraud by agreeing to
    pay the United States in excess of \$1.18 billion. As incentive not
    to deny treatment to the sickest patients, the Medicare program
    allows for additional "outlier" reimbursements to hospitals for
    unusually costly patient care. Tenet Healthcare Corporation, the
    nation's second largest hospital chain, was accused of fraudulently
    inflating costs of patient care to receive excessive outlier
    payments. Tenet agreed to pay \$919 million. In the midst of similar
    allegations, Saint Barnabas Corporation, New Jersey's largest health
    care system, agreed to a \$265 million settlement.

-   ***[Procurement Fraud]{.underline}*** Boeing Company agreed to pay
    the United States a record \$615 million to resolve allegations of
    Government procurement fraud. Boeing was accused of obtaining
    competitors' documents and inappropriately utilizing them to procure
    contracts from the Air Force and NASA. Of the total settlement,
    \$565 million was negotiated by the Civil Division.

-   ***[Tobacco]{.underline}*** In August 2006, the Division won a
    seven-year-old lawsuit against nine tobacco companies when a Federal
    judge found them guilty of civil fraud and racketeering for
    deceiving the public about the risks of smoking in order to maintain
    profits. The decision provides for injunctive relief, including
    disallowing future acts of fraud and ordering the companies to
    advertise "corrective statements" regarding the true health risks of
    nicotine and smoking. Furthermore, the judge barred these companies
    from using misleading terms such as "mild," "light," and
    "ultralight" in brand names.

Many of the non-monetary suits handled by the Civil Division are
extremely contentious, often dealing with hotly-debated points of law
and controversial Government policies and actions ranging from
counterterrorism to pharmaceutical safety. Because such cases are
high-profile and have far-reaching policy repercussions, Civil's success
in them is imperative. The Civil Division's track record in enforcing
civil statutes through affirmative programmatic litigation is no less
impressive. The following cases are representative of those handled by
Division attorneys on a daily basis.

-   ***[Designation of Foreign Terrorists and Their
    Supporters]{.underline}*** The U.S. has designated over 400
    individuals, companies, and organizations as supporters of
    terrorists, terrorist groups and/or their support networks. As a
    result of these designations, the U.S. and its international
    partners have frozen more than \$145 million in assets that could
    have been funneled to terrorist activities.

> In *Kahane Chai v. Department of State*, the D.C. Circuit upheld the
> redesignation of Kahane Chai/Kach by the Secretary of State as a
> Foreign Terrorist Organization under the Antiterrorism Act of 1996.
> The court rejected the petitioners' claim that the Secretary had
> insufficient record evidence to justify redesignation and it denied
> the petitioners' contention that due process rights had been violated.
> This group had previously been banned by the Israeli Government
> because of its threats to Israeli and Arab leaders, and its
> glorification of an Israeli individual who had murdered Arab
> civilians.

-   ***[Communications Decency Act]{.underline}*** In *Nitke v.
    Gonzales*, the Supreme Court summarily affirmed a decision by a
    three-judge district court and rejected a First Amendment challenge
    to the Communications Decency Act's prohibition on the knowing
    transmission of obscenity or child pornography via the Internet. The
    plaintiff, an art photographer who specializes in sexually explicit
    material, challenged the Act on the grounds that the statute relies
    on community standards to determine obscenity. She also argued that
    the restriction on "obscene" communication was unconstitutionally
    vague. The Government successfully argued that the challenge was
    largely foreclosed by Supreme Court precedent and that the
    "vagueness" challenge was insubstantial.

```{=html}
<!-- -->
```
-   ***[Generic Drugs]{.underline}*** In *Apotex Inc. v. Food and Drug
    Administration (FDA)*, Number range CHAPTERthe court upheld the
    FDA's patent-based approach to generic drug applications made prior
    to the Medicare Modernization Act. FDA awards a 180-day exclusivity
    period for each innovator company's patent that is challenged.
    Generic drug maker Apotex sought immediate approval to market a
    generic version of Prilosec -- a drug for which FDA found another
    company was eligible for 180-day exclusivity. Apotex argued that FDA
    cannot award more than one period of exclusivity for each drug
    product, but the court agreed with FDA. Apotex\'s approach had
    support from a previous district court decision and could have
    forced FDA to change positions in numerous drug approvals.

-   ***[Pharmaceutical Safety]{.underline}*** The Division successfully
    shut down an illegal Internet pharmacy operation that smuggled
    millions of dollars in counterfeit pharmaceuticals into the country
    and illegally sold them to consumers online. Customers could order
    prescription drugs without having a prior prescription. The website
    falsely represented that a doctor would review the questionnaire and
    issue a lawful prescription before the drugs were shipped to the
    customers. The pharmacy operator was sentenced to serve a prison
    term of 51 months and forfeit substantial cash proceeds for his role
    in operating one of the largest Internet pharmacy schemes ever
    prosecuted.

-   ***[Defense of the National Motto]{.underline}*** Number range
    CHAPTERNumber range CHAPTERNumber range CHAPTERIn *Newdow v.
    Congress of the United States of America*, plaintiff sought to have
    the national motto, "In God We Trust," declared unconstitutional for
    violating the First Amendment. Plaintiff sought various forms of
    relief, including an injunction barring the Federal Government from
    printing coins and currency inscribed with the motto. In June 2006,
    the district court dismissed the case, citing precedent which
    establishes the national motto as constitutional, while also finding
    that the Legislative Branch defendants were immune from plaintiff's
    claims.

-   ***[Toy Safety]{.underline}*** In July 2006, the Ninth Circuit Court
    of Appeals affirmed the 21-month prison sentence for Matthew Lotze,
    who was convicted of fraud and false statement charges for reselling
    hazardous toys that he had been hired to destroy. Chevron Texaco
    Corporation had recalled the approximately 600,000 toy cars after
    the U.S. Consumer Product Safety Commission determined that they
    were banned hazardous substances because they contained small parts
    that could break off and pose a choking hazard to children under age
    three.

**Strategies to Accomplish Outcomes**

The Civil Division has achieved extraordinary success despite resource
limitations. This is due in large part to numerous innovative strategies
employed by the Division:

-   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
    U.S. Attorneys to promote and maintain uniform litigation positions.

-   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.

**Program Increase**

**Item Name: [Immigration Litigation]{.underline}**

Budget Decision Unit: [Legal Representation]{.underline}

Strategic Goal & Objective: [Goal 2; Objective 2.5]{.underline}

Organizational Program: [Office of Immigration Litigation]{.underline}

Component Ranking of Item: [1 of 2]{.underline}

Program Increase: Positions [163]{.underline} Atty [124]{.underline} FTE
[82]{.underline} Dollars [\$14,124,000]{.underline}

**Description of Item**

Millions of illegal aliens are living in the United States -- a
situation that is problematic to the Administration, Congress, and the
American public. The Civil Division's Office of Immigration Litigation
(OIL) serves a vital role in the enforcement of immigration law by
defending petitions filed in circuit courts that seek to overturn
removal decisions issued by the Department of Homeland Security and
DOJ's Executive Office for Immigration Review. Despite the volume of
cases challenging orders of removal, a substantial portion of OIL\'s
litigation resources are also expended in defending class actions and
other district court challenges to various aspects of immigration policy
and enforcement, including cases involving counterterrorism and national
security. Any attempt to secure the borders must include adequate
resources for OIL. For FY 2008, the Civil Division requests 163
positions (124 attorneys), 82 FTE, and \$14,124,000 to uphold the laws
governing immigration policy and enforcement. Number range CHAPTER

![](media/image9.png){width="3.0729166666666665in" height="3.0in"}

**[Background]{.underline}**

OIL defends the nation's immigration laws at the highest level of
judicial review. U.S. immigration enforcement functions begin with the
Department of Homeland Security's Customs and Border Protection (CBP),
and Immigration and Customs Enforcement (ICE). Both CBP and ICE enforce
the United States' immigration laws by, among other things, initiating
legal proceedings to remove illegal aliens. In response, many aliens
challenge ICE's actions by seeking asylum or other relief from removal
from DOJ's Executive Office for Immigration Review's Board of
Immigration

Appeals (BIA). If the BIA rules in favor of ICE, the alien can challenge
the BIA's decision by filing a petition for review in Federal court.

OIL\'s caseload is directly tied to DHS's immigration enforcement
efforts and to the immigration adjudication rates of the BIA in the
Department\'s Executive Office for Immigration Review. 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 continues to grow. The vast majority of OIL's cases are review
petitions challenging removal decisions issued by the BIA. In FY 2002
and FY 2003, thousands of review petitions flooded the Federal courts of
appeal as the BIA aggressively reduced a substantial backlog of cases.
As seen in the graph below, between FY 2002 and FY 2006, OIL experienced
a sharp rise in the number of new petitions filed. Although the BIA
backlog has been cleared, heightened enforcement activity by the DHS has
caused review petitions to continue to inundate OIL's docket. This
growth in caseload is also fuelled by a sharp rise in the percentage of
removal decisions that aliens appeal to the Federal circuit courts.

![](media/image10.wmf)

The adverse effects of OIL's caseload increasing faster than its
resources are being felt throughout the entire system of immigration
enforcement. Federal judges have issued harsh criticisms about the
inundation of circuit court filings. The Department as a whole has also
been burdened by the thousands of immigration briefs that must be
"outsourced" to attorneys in other DOJ components or reassigned to U.S.
Attorneys' Offices in order to keep up with the influx of review
petitions. Most importantly, there may be severe national security
consequences if OIL is unable to meet its responsibility to enforce the
removal of illegal aliens.

**[Justification]{.underline}**

[]{.mark}

OIL will require a FY 2008 program increase of 163 positions (124
attorneys), 82 FTE, and \$14,124,000. The purpose of this increase is to
address the untenable burden placed on OIL attorneys as the caseload
continues to rise.

This sharp rise in caseload has dramatically increased the number of
cases that must be assigned to each OIL attorney -- from a reasonable
level of approximately 72 cases in FY 2002 to a peak of 158 in FY 2005.
Despite the funding increase approved by Congress in FY 2006, the
resulting drop in the per-attorney caseload was almost imperceptible.
Over the next two years, over 20,000 new petitions for review are
expected to be filed.

In order to provide the most effective and vigorous defense of
immigration cases that meets both the standards of the Department and
the expectations of the courts, the Civil Division seeks to reduce the
number of cases per attorney to 82 in FY 2008, and eliminate the
outsourcing of cases to other components and U.S. Attorneys' Offices.
Ending outsourcing and reducing each OIL attorney's caseload will
restore OIL's ability to adequately prepare for each case, ensuring
immigration enforcement efforts are fully protected from unmeritorious
challenges.

  ------------------------------------------ ----------------------------
                                             **Cases Per Attorney**

  **FY 2002**                                72

  **FY 2003**                                110

  **FY 2004**                                137

  **FY 2005**                                158

  **FY 2006**                                143

  **FY 2007 Est.\***                         117

  **FY 2008 Est. ( +124 Attorneys)**         82
  ------------------------------------------ ----------------------------

> \* Includes additional attorneys hired with funds from the FY 2006
> Supplemental Appropriation.

Congress made it clear that improving immigration enforcement is a
priority by passing the Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Hurricane Recovery in June 2006,
which appropriated \$9,000,000 for OIL through September 30, 2007. In
September 2006, Congress passed the FY 2007 Homeland Security
Appropriations Act, which provided an unprecedented level of funding for
DHS's Secure Border Initiative. The new funding will allow DHS to add
1,500 border patrol agents and 6,700 detention beds, which is certain to
translate into more cases for OIL.[^4] If this request is not approved,
the attorneys and support staff hired under the OIL supplemental will be
released when the funding expires in less than one year. OIL will be
unable to keep pace with increased enforcement efforts of DHS and other
Government entities, thereby weakening the entire immigration
enforcement system and necessitating additional resources in FY 2008.

**Impact on Performance**

The impact of increased caseload on performance has been threefold:

*1) Inadequate staffing has had a negative impact on OIL's performance
in court.*

OIL enforces and defends the Nation's immigration laws and policies at
the highest levels of judicial review, directly supporting the Nation's
desire to vigorously represent the United States in all matters for
which the Department has jurisdiction. Inadequate staffing has a
negative effect on the quality of advocacy, and some judges have
complained that the high quality of Government representation has
declined as the flood of immigration cases has increased. Moreover,
judges have also voiced the opinion that the Government should use
greater discretion in deciding which cases to defend in court,
suggesting that adverse decisions could be avoided if the Government
were to \"screen\" cases more carefully. Both criticisms are directly
related to inadequate staffing. Inadequate staffing will inevitably
cause overburdened attorneys to lose cases in appellate courts that
should have been won and may lead to the Government's inability to
provide a necessary response in all cases.

*2) Outsourcing has undercut the productivity of the Department and its
litigating divisions.*

Outsourcing has forced DOJ components to draw resources away from their
primary law enforcement missions. To provide some relief to OIL
attorneys, thousands of immigration briefs have been "outsourced" to
attorneys in other DOJ components and reassigned to U.S. Attorneys'
Offices nationwide. Outsourcing entails the assignment of briefs to
numerous Department components that are, by and large, unschooled in
immigration law. OIL retains overall responsibility for each case
regardless of whether the brief has been reassigned to one of the other
litigating divisions -- often including the responsibility to represent
the Government should the case proceed to oral argument. Distributing
cases in this manner is inefficient because it often takes attorneys in
other components disproportionately more time to brief and argue cases
than it takes OIL attorneys, who are more experienced and knowledgeable
in this complex area of law. Moreover, because of the highly specialized
nature of immigration law, the practice may prove to be significantly
less effective in defending challenges to removal decisions than a
centralized approach. Approval of this request will improve productivity
and effectiveness both in OIL and numerous other DOJ litigating
components.

*3) Inadequate Resources for OIL adversely affects national security.*

Immigration enforcement has risen to the forefront of U.S. law
enforcement concerns. It is essential for the protection of the borders
and the security of the nation. Without adequate resources, OIL will be
unable to fulfill its role in the larger system of immigration
enforcement and border protection -- top priorities of the Department,
the Administration, and the American public.

Approval of this request will (1) ensure OIL's ability to provide the
best defense of immigration cases in court; (2) eliminate the need to
outsource immigration briefs throughout the Department; and (3) ensure
that the United States benefits from a unified Federal immigration
enforcement strategy.

**Funding -- Office of Immigration Litigation**

Base Funding

<table style="width:100%;">
<colgroup>
<col style="width: 6%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 10%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 7%" />
<col style="width: 10%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 12%" />
</colgroup>
<tbody>
<tr class="odd">
<td colspan="4"><p id="fy-2006-enacted" class="heading"> FY 2006 Enacted
</p></td>
<td colspan="4"><p id="fy-2007-estimate" class="heading">FY 2007
Estimate</p></td>
<td colspan="4"><p id="fy-2008-presidents-budget-current-services"
class="heading">FY 2008 President’s Budget Current Services</p></td>
</tr>
<tr class="even">
<td>Pos</td>
<td>Atty</td>
<td>FTE</td>
<td>($000)</td>
<td>Pos</td>
<td>Atty</td>
<td>FTE</td>
<td>($000)</td>
<td>Pos</td>
<td>Atty</td>
<td>FTE</td>
<td>($000)</td>
</tr>
<tr class="odd">
<td>204</td>
<td>155</td>
<td>183</td>
<td>$31,108</td>
<td>318</td>
<td>241</td>
<td>269</td>
<td>$44,121</td>
<td>315</td>
<td>239</td>
<td>323</td>
<td>$56,796</td>
</tr>
</tbody>
</table>

[Personnel Increase Cost Summary]{.underline}

+---------------------+---------------+-------------+-----------------+
| Type of Position    | Modular Cost  | Number of   | FY 2008         |
|                     |               |             |                 |
|                     | per Position  | Positions   | Request (\$000) |
|                     |               |             |                 |
|                     |               | Requested   |                 |
+---------------------+---------------+-------------+-----------------+
| Attorney            | \$98,493      | 124         | \$12,213        |
+---------------------+---------------+-------------+-----------------+
| Paralegal           | \$52,267      | 8           | 417             |
+---------------------+---------------+-------------+-----------------+
| Clerical            | \$48,245      | 31          | 1,494           |
+---------------------+---------------+-------------+-----------------+
| Total Personnel     |               | 163         | 14,124          |
+---------------------+---------------+-------------+-----------------+

Non-Personnel Increase Cost Summary

+---------------------+---------------+-------------+-----------------+
| Non-Personnel Item  | Unit Cost     | Quantity    | FY 2008 Request |
|                     |               |             |                 |
|                     |               |             | (\$000)         |
+---------------------+---------------+-------------+-----------------+
|                     | ...           | ...         | ...             |
+---------------------+---------------+-------------+-----------------+
| Total Non-Personnel | ...           | ...         | ...             |
+---------------------+---------------+-------------+-----------------+

Total Request for this Item

+---------------+----+-----+-----+------------+------------+---------+
|               | P  | A   | FTE | Personnel  | Non        | Total   |
|               | os | tty |     |            | -Personnel |         |
|               |    |     |     | (\$000)    |            | (\$000) |
|               |    |     |     |            | (\$000)    |         |
+---------------+----+-----+-----+------------+------------+---------+
| Current       | 3  | 239 | 323 | \$54,186   | \$2,610    | \       |
| Services      | 15 |     |     |            |            | $56,796 |
+---------------+----+-----+-----+------------+------------+---------+
| Increases     | 1  | 124 | 82  | 14,124     | ...        | 14,124  |
|               | 63 |     |     |            |            |         |
+---------------+----+-----+-----+------------+------------+---------+
| Grand Total   | 4  | 363 | 405 | 68,310     | 2,610      | 70,920  |
|               | 78 |     |     |            |            |         |
+---------------+----+-----+-----+------------+------------+---------+

**Program IncreaseNumber range CHAPTER**

**Item Name: [Guantanamo Bay Detainee Litigation]{.underline}**

Budget Decision Unit: [Legal Representation]{.underline}

Strategic Goal & Objective: [Goal 1 and Goal 2; Objective
2.5]{.underline}

Organizational Program: [Appellate Staff & Federal Programs
Branch]{.underline}

Component Ranking of Item: [2 of 2]{.underline}

Program Increase: Positions [29]{.underline} Atty [23]{.underline} FTE
[15]{.underline} Dollars [\$3,263,000]{.underline}

**[Description of Item]{.underline}**

Protecting the American people from the threat of terrorism is one of
the greatest challenges facing the Government today. Since September
11^th^, the Government has implemented numerous counterterrorism
strategies that have disrupted terrorist attacks. Many of these
policies, however, have drawn legal challenges in court, with cases
often rising to the highest levels of judicial review. To ensure that
such challenges do not strip the United States of critical
counterterrorism tools and hinder counterterrorism efforts, a strong
legal defense is essential.

Among the most complex and contentious counterterrorism suits currently
before the courts are the Guantanamo Bay Detainee (GTMO) cases handled
by the Civil Division. These suits have been filed on behalf of hundreds
of alien enemy combatants held at the Guantanamo Bay Naval Base in Cuba.
Most of these cases were placed on hold pending a decision in the
leading case of *Al Odah v. United States* that will interpret the
Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of
2006 (MCA). Under the MCA, the Division expects to defend approximately
400 GTMO cases in FY 2008 and beyond. In order to handle these cases,
the Civil Division seeks Congressional approval of 29 positions (23
attorneys), 15 FTE, and \$3,263,000 for FY 2008.

**[Justification]{.underline}**

The United States is currently detaining approximately 400 alien enemy
combatants at its Guantanamo Bay Naval Base. The majority of these
individuals were apprehended by the United States and its allies during
military actions in Afghanistan. Since arriving at Guantanamo, nearly
all of the detainees have been determined to be enemy combatants through
multiple levels of military review, including a formal hearing before a
military Combatant Status Review Tribunal (CSRT). The detainees were
determined by the CSRTs to be members or associates of al Qaeda or the
Taliban. Also, 14 high-level terrorist leaders or operatives were
recently transferred to Guantanamo and are awaiting CSRTs. Each year,
the U.S. conducts further reviews to assess the current threat posed by
each detainee and to determine whether each should remain in custody, be
transferred to another country, or be released.[^5]

The Government has argued that because they are aliens located outside
the U.S., the detainees are not entitled to the protections of the U.S.
Constitution. The President has directed that all detainees be treated
humanely, and, under the Supreme Court's decision in *Hamdan v.
Rumsfeld*, detainees are protected under Common Article 3 of the Geneva
Conventions. Also, the detainees are afforded significant procedural
protections with respect to the determination of their enemy combatant
status through the CSRTs. Despite these procedural protections, over the
last several years more than 200 habeas actions have been filed in the
District Court for the District of Columbia. Some of these actions
concern two or more detainees.

In December 2005, Congress enacted the Detainee Treatment Act, which
grants the District of Columbia Circuit Court of Appeals (D.C. Circuit)
exclusive jurisdiction over challenges to the validity of any CSRT final
determination. The Court may review whether the CSRT determination was
consistent with the standards and procedures specified for CSRT
proceedings, and whether such standards and procedures are consistent
with the laws of the United States and the Constitution. To date, nine
detainees have filed challenges to their detention in the D.C. Circuit
under the DTA.

Congress enacted Number range CHAPTERthe Military Commissions Act of
2006 in October 2006. The Act states that, with the exception of D.C.
Circuit review provided under the DTA, "no court, justice, or judge
shall have jurisdiction to hear or consider" any habeas claim or claim
relating to any aspect of the detention, transfer, trial, or conditions
of confinement filed by an alien detainee determined to have been
properly detained as an enemy combatant or who is awaiting such a
determination. The Act applies "to all cases, without exception, pending
on or after the date of enactment."[^6]

-   Based on this Act, the Government has asked that all habeas actions
    currently pending in the District Court for the District of Columbia
    be dismissed.

-   Detainees claim that the MCA effects an unconstitutional suspension
    of habeas corpus.

-   One district court judge dismissed a detainee's habeas petition
    citing the MCA's removal of Federal court jurisdiction over such
    matters (*Hamdan v. Rumsfeld*). Most likely, this decision will be
    appealed.

-   Despite the new law, counsel for detainees continue to file habeas
    cases in district court.

A decision is currently pending in the D.C. Circuit in *Al Odah v.
United States*. This matter concerns conflicting Federal district court
decisions about whether or not the detainees have constitutional rights
and whether the CSRTs provide them with any required due process. This
decision is expected to determine the scope of both the Detainee
Treatment Act and the Military Commissions Act. The non-prevailing party
will likely seek Supreme Court review.

If this litigation is found in the Government's favor, the approximately
400 detainees may file challenges to the CSRTs in the D.C. Circuit. If
the litigation is found against the Government, detainees may be able to
maintain cases both in the D.C. Circuit and in the district court. In
either case, the Government will be faced with defending at least 400
cases in FY 2008 and beyond, perhaps in multiple courts. GTMO suits are
extremely high-profile and have attracted attorneys and legal scholars
from around the nation to represent the detainees, ensuring that Civil
Division attorneys will face a constant barrage of innovative legal
arguments.

In addition, four other cases have been filed in the District Court for
the District of Columbia on behalf of more than 30 detainees allegedly
held by the United States at the U.S. military base in Bagram,
Afghanistan. While these cases will be impacted by the outcome of *Al
Odah v. United States*, the Government will nonetheless have to litigate
the cases, and potentially other similar cases filed on behalf of Bagram
detainees.

Approval of the Division's request of 29 positions (23 attorneys), 15
FTE, and \$3,263,000, will ensure that the Division is prepared to
handle the onslaught of cases that represent a vital tool in rooting out
and deterring terrorist acts. It will enable the Division to assemble a
team of 23 attorneys headed by seven on-board, seasoned Civil Division
attorneys who, by FY 2008, will have had substantial experience with the
GTMO litigation. The size of this team is consistent with the size of
the litigation teams established in the past to handle the Division's
most massive litigation.

Included in this request is \$700,000 for Automated Litigation Support
(ALS). Contractor-provided ALS services have proved to be indispensable
when the Division's limited staff of attorneys has been confronted with
massive discovery and trial support requirements. This program has a
proven track record -- over 20 years -- for effectively supporting
discovery, trials, appeals, and management of highly complex and
expansive litigation. Without it, the Government's defense would be
impaired significantly.

**[Impact on Performance]{.underline}**

At the heart of the Guantanamo Bay detainee litigation are some of the
most critical policy, security, and constitutional issues debated today.
The Civil Division is responsible for defending current statues in these
highly contentious cases before the Federal courts. Accordingly,
providing for a successful defense in the GTMO litigation directly
addresses some of society's most prevalent concerns about protecting
homes, families, communities, and the United States by preventing future
acts of terrorism.[^7]

The detainees held at Guantanamo Bay were active members or supporters
of al Qaeda or the Taliban at the time of their capture, and several
were highly placed deputies and associates of top al Qaeda leadership.
For instance, Khalid Shaykh Muhammad was the mastermind behind the
September 11, 2001 attacks, while another detainee was the intended
"20^th^ hijacker" on that day. Salim Ahmed Hamdan was Osama bin Laden's
personal bodyguard and driver. Other notables include explosives experts
who designed cell phone detonators and prototype shoe bombs to destroy
airplanes and magnetic mines to sink ships. Other detainees were
involved in political assassinations, attacks on journalists and aid
workers, and terrorist financing operations. It is essential that the
Government put forth the most vigorous defense possible to ensure that
these individuals are not free to continue to support terrorist
networks.

By enacting the MCA, Congress provided detainees with a venue for legal
review of the CSRT determinations. In upholding the provisions of the
MCA, the Division expects to face a massive influx of Guantanamo
litigation in the coming years. In FY 2008, the Division estimates that
it may handle approximately 400 GTMO cases in the D.C. Circuit. Because
of the resource-intensive nature of these cases, such a dramatic rise in
workload cannot be handled within the Division's base resources. To
ensure that the U.S. has the means to prevail in these top-priority
cases and concurrently combat terrorist threats, adequate resources must
be made available to the Civil Division.

**Funding -- Guantanamo Bay Detainee Litigation**

Base Funding

<table style="width:100%;">
<colgroup>
<col style="width: 6%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 10%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 7%" />
<col style="width: 10%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 12%" />
</colgroup>
<tbody>
<tr class="odd">
<td colspan="4"><p id="fy-2006-enacted-1" class="heading">FY 2006
Enacted </p></td>
<td colspan="4"><p id="fy-2007-estimate-1" class="heading">FY 2007
Estimate</p></td>
<td colspan="4"><p id="fy-2008-presidents-budget-current-services-1"
class="heading">FY 2008 President’s Budget Current Services</p></td>
</tr>
<tr class="even">
<td>Pos</td>
<td>Atty</td>
<td>FTE</td>
<td>($000)</td>
<td>Pos</td>
<td>Atty</td>
<td>FTE</td>
<td>($000)</td>
<td>Pos</td>
<td>Atty</td>
<td>FTE</td>
<td>($000)</td>
</tr>
<tr class="odd">
<td>7</td>
<td>7</td>
<td>7</td>
<td>$1,221</td>
<td>7</td>
<td>7</td>
<td>7</td>
<td>$2,250</td>
<td>7</td>
<td>7</td>
<td>7</td>
<td>$2,278</td>
</tr>
</tbody>
</table>

[Personnel Increase Cost Summary]{.underline}

Non-Personnel Increase Cost Summary

Total Request for this Item

+---------------+----+-----+-----+------------+------------+---------+
|               | P  | A   | FTE | Personnel  | Non        | Total   |
|               | os | tty |     |            | -Personnel |         |
|               |    |     |     | (\$000)    |            | (\$000) |
|               |    |     |     |            | (\$000)    |         |
+---------------+----+-----+-----+------------+------------+---------+
| Current       | 7  | 7   | 7   | \$1,278    | \$1,000    | \$2,278 |
| Services      |    |     |     |            |            |         |
+---------------+----+-----+-----+------------+------------+---------+
| Increases     | 29 | 23  | 15  | 2,563      | 700        | 3,263   |
+---------------+----+-----+-----+------------+------------+---------+
| Grand Total   | 36 | 30  | 22  | 3,841      | 1,700      | 5,541   |
+---------------+----+-----+-----+------------+------------+---------+

**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 (GLA) Program. At the end of the
assessment, the GLA program received a rating of "Effective."[^8] Other
findings showed that:

-   The Program effectively achieves its goal of resolving cases in
    favor of the Government. Favorable resolutions, in turn, punish and
    deter violations of the law; ensure the integrity of Federal laws
    and programs; and prevent the Government from losing money through
    unfavorable settlements or judgments.

-   The Program collaborates effectively with its partners, notably the
    U.S. Attorneys' Offices. The two programs work closely to share
    expertise, make referrals, and designate cases for prosecution,
    while minimizing any overlap of responsibilities.

-   The Program exhibits good management practices. This includes strong
    financial management, collecting and using performance information
    to make decisions, and holding managers accountable for program
    performance.

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

-   Implementing a plan to conduct an independent evaluation.

> In FY 2006, the Department\'s Justice Management Division (JMD)
> offered a proposal to the Management and Planning Staff (MPS) and the
> Office of the Inspector General (OIG) to perform an independent
> evaluation of the GLA components (GLAs). The proposal recommended that
> MPS perform initial background interviews in a manner consistent with
> OIG yellow book regulations. MPS would later hand off their
> preliminary research to OIG to review and offer their findings and
> recommendations. However, OIG was unable to include the GLA evaluation
> in their FY 2007 docket, and as a result, JMD and the GLAs are
> currently exploring other options to meet the PART follow-up action of
> \"Performing an independent evaluation of the GLAs.\"

-   Establishing leadership training and mentoring program to continue
    improving the quality of program management.

> Civil\'s Attorney Training Committee completed three attorney
> trainings for new Honors Program and lateral attorney hires in
> January, February, and March. The trainings focused on electronic
> discovery and filing, alternative dispute resolution, and expert
> witnesses. All of the new Honors Program attorneys have completed the
> Civil advocacy course at the [\<]{.mark}National[\>]{.mark}
> [\<]{.mark}Advocacy[\>]{.mark} [\<]{.mark}Center[\>]{.mark} in
> [\<\<]{.mark}South Carolina[\>\>]{.mark}.

-   Working with the Department's Chief Information Officer to evaluate
    and purchase litigation software that will improve productivity and
    efficiency.

> The Civil Division serves as the chief GLA representative on three
> major CIO Department-wide initiatives: the consolidated case
> management system, the debt collection system, and the unified
> financial management system. Civil Division representatives are active
> participants in these time-intensive projects to develop efficient
> management tools. Significant progress continues to be made on the
> consolidated case management system (LCMS) and the debt collection
> system (CDCS).

**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 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:

-   The Department of Justice and the Department of Health and Human
    Services effectively collaborate to administer the program jointly.
    The two agencies have a good working relationship and coordinate
    well with one another and with the judges who adjudicate the claims.

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-   The Program has made progress in achieving its annual performance
    goals, but its performance on long-term goals has been inconsistent.
    In particular, the Program has experienced mixed results in ensuring
    that all eligible claimants are compensated and reducing the amount
    of time needed to process a claim.

-   The Program's design contains flaws that hinder its ability to
    satisfy both claimants and vaccine manufacturers. Some of the
    design-related problems include loopholes allowing circumvention of
    the Program, extensive delays in the processing of claims, and a
    large balance in the Program's Trust Fund that remains unspent.

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

-   Seek an independent evaluation to assess the Program's
    effectiveness, impact, and design.

> On September 30, 2005, a contract was awarded to assess the
> feasibility and parameters of such an evaluation.  The feasibility
> study is ongoing.

-   Improve the way the Program projects its financial liabilities in
    future years.

> In January 2006, HHS conducted an analysis of various options for this
> methodology and decided that the current methodology of estimating
> awards by increasing them by three percent over the previous year is
> the most appropriate methodology to use considering the multitude of
> unknown variables.

-   Reduce claims processing time by increasing the use of electronic
    file sharing between agencies, expert witnesses, and other parties.

> Efforts to convert paper to electronic files are ongoing.  Certain
> interagency communications previously transmitted via paper hard copy
> are now electronic.  For example, as of March 2006, medical records
> have been shared with HHS as electronic files on a weekly basis. 
> Using electronic images has standardized our distribution of
> supplemental records, resulting in greater efficiency of case
> processing.

**Radiation Exposure Compensation Program** During FY 2006, the
Radiation Exposure Compensation Program was evaluated with OMB's PART
assessment. 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:

-   The Program has developed ambitious annual and long-term goals
    focusing on outcomes that meaningfully reflect the purpose of the
    Program. However, the program must ensure that partners are
    committed to achieving annual and long term goals.

-   The Program's statutory scheme contains flaws with respect to some
    of its claimant categories. Although the statute is founded on the
    scientifically-based association between exposure and illness for
    occupationally exposed uranium workers, the same is not true for the
    other claimant categories.

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

-   Ensure Program partners are expressly committed to achieving the
    stated annual and long-term performance goals of the Program.

-   Develop a plan to tie resources to specific performance measures.

-   Monitor the activities of the National Academy of Sciences and like
    organizations that are studying the Act's eligibility criteria.

[^1]: The potential Katrina cases and the Harbor Maintenance Tax cases,
    for the purpose of this graphic, are so numerous that they must be
    treated as outliers and have been excluded.

[^2]: This rate of return is based on amounts recovered in affirmative
    cases funded through the Health Care Fraud and

    Abuse Control (HCFAC) Account and the Three Percent Fund.

[^3]: These amounts exclude \$4.2 billion at issue in the 9,004 Harbor
    Maintenance Tax filed in the Court of

    International Trade. The cases were resolved in the Government's
    favor in December 2005.

[^4]: "President Signs FY 2007 Homeland Security Appropriations." DHS
    Press Release. October 4, 2006.
    http://www.dhs.gov/xnews/releases/pr_1159998463126.shtm

[^5]: This annual review does not apply to enemy combatants designated
    for trial by military commission.

[^6]: Military Commissions Act of 2006, Pub. L. no. 109-366, 120 Stat.
    2600, Sec. 7 (2006).

[^7]: With respect to the Department's Strategic Plan, funding of this
    litigation supports the Department\'s Strategic

    Goal 2, Objective 2.5, to "vigorously represent the United States in
    all matters for which the Department has

    jurisdiction" as well as Goal 1, to "prevent terrorism and promote
    the nation's security."

[^8]: Programs undergoing the PART receive one of five ratings:
    Effective, Moderately Effective, Adequate,

    Ineffective, or Results Not Demonstrated.