a

GAO

United States Government Accountability Office

Report to Congressional Recipients

July 2004 NO FEAR ACT

Methods the Justice 

Department Says It 

Could Use to Account 

for Its Costs Per Case 

under the Act

GAO-04-863
Highlights of GAO-04-863, a report to 

congressional recipients 

www.gao.gov/cgi-bin/getrpt?GAO-04-863.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact George H. 

Stalcup at (202) 512-9490 or 

stalcupg@gao.gov. 

July 2004

NO FEAR ACT 

Methods the Justice Department Says It 

Could Use to Account for Its Costs Per 

Case under the Act 

The two DOJ offices that handle cases covered under No FEAR could start 

to account for these costs on a per-case basis by the beginning of fiscal year 

2006 by changing their current systems and procedures. The Executive 

Office of United States Attorneys (EOUSA) provides accounting for the U.S. 

Attorneys, who handled the vast majority of employment discrimination 

cases for DOJ in fiscal year 2002. EOUSA officials said they could account 

for the per-case costs of cases covered under No FEAR beginning in fiscal 

year 2006 by using a modification of the way the office currently accounts 

for health care fraud cases as a group. One change necessary would be for 

U.S. Attorneys and their paralegals to begin to track their time by case, not 

by group, as they do now. EOUSA would also need to revise its calculation 

of nonpersonnel costs to allocate these costs to individual cases, instead of 

by group. The Civil Division could account for No FEAR cases on a per-case 

basis by the beginning of fiscal year 2005 in the same way it currently 

conducts per-case accounting for vaccine injury compensation cases. This 

would include identifying personnel costs by requiring Civil Division legal 

professionals to track their time for each No FEAR case on which they work 

and allocating nonpersonnel costs to each case using a formula for allocating

these costs based on the relative amount of time that legal professionals 

work on No FEAR cases versus all other cases. 

The changes needed for DOJ to begin accounting for costs it incurs in cases 

covered under No FEAR on a per-case basis would require both start-up and 

recurring costs. EOUSA says that per-case accounting for No FEAR cases 

would require about $535,000 in start-up costs—mostly for labor to modify 

computer systems. Officials from EOUSA did not provide an estimate of 

their recurring costs, but said they would not be substantial because the cost 

calculations required for per-case accounting would be carried out 

electronically. Officials added, however, that many attorneys may not favor 

tracking their time by case because it could lead to an added emphasis on 

the number of cases being handled. Because the Civil Division is already 

performing per-case accounting for certain types of cases, and because this 

process could also be used for No FEAR cases, officials said accounting for 

per-case costs for No FEAR cases would not require substantial start-up 

costs. Officials from the Division said it would incur an annual cost of about 

2 work weeks to perform the accounting. DOJ officials said that if 

appropriate features are included, a DOJ-wide financial management 

information system planned for EOUSA and the Civil Division by fiscal year 

2008 could make it less costly for the department to account for costs of No 

FEAR cases on a per-case basis than the estimates they gave us. The costs 

that DOJ said it would incur to conduct per-case accounting for No FEAR 

cases—there is no plan to do so—are estimates and do not reflect the total 

cost to DOJ of billing and seeking reimbursement for these cases. 

Allegations of violations of 

employment discrimination and 

whistleblower protection laws 

against federal agencies can end up 

in federal court, at which point 

Department of Justice (DOJ) 

attorneys generally take over 

representation of the agency. 

Attorneys within Justice’s Civil 

Division and U.S. Attorneys’ Offices 

generally handle this type of 

litigation. 

The Notification and Federal 

Employee Antidiscrimination and 

Retaliation Act of 2002 (No FEAR) 

requires agencies to repay the 

Department of the Treasury’s 

Judgment Fund for discrimination 

and whistleblower protection 

settlements and judgments paid on 

their behalf. While the No FEAR 

Act does not require agencies to 

reimburse DOJ for costs incurred 

in defending them in cases covered 

under the act, it does require GAO 

to review how DOJ could ascertain 

the cost of representing agencies in 

each case and what the burden of 

performing this accounting would 

be. Based on this requirement, our 

report provides information on 

(1) the methods DOJ says it could 

use to account for the personnel 

and nonpersonnel costs that it 

incurs in handling cases covered 

under No FEAR on a per-case basis 

and how soon the Department 

expects it would be able to do so, 

and (2) how costly DOJ expects it 

would be to account for each case. 

We make no recommendations in 

this report. 
Page i GAO-04-863 No FEAR Act

Contents

Letter 1

Results in Brief 3

Background 4

DOJ Could Adopt Modifications to Its Existing Methods to Account 

for Costs of Most No FEAR Cases by Case, Beginning in Fiscal 

Year 2006 6

Accounting for Costs of No FEAR Cases by Case Would Involve 

Start-Up Costs and Additional Staff Time, but DOJ Officials Said 

Neither Cost Would Be Substantial 9

Agency Comments 11

Appendixes

Appendix I: Scope of Laws Covered by the No FEAR Act 13

Appendix II: GAO Contact and Staff Acknowledgments 14

GAO Contact 14

Acknowledgments 14

Figures Figure 1: Calculations Necessary for DOJ to Begin Accounting for 

Personnel Costs of No FEAR Cases by Case for a Fiscal 

Year 7

Figure 2: Calculations Necessary for DOJ to Begin Accounting for 

Nonpersonnel Costs of No FEAR Cases by Case for a 

Fiscal Year 8
Contents

Page ii GAO-04-863 No FEAR Act

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reproduce this material separately.

Abbreviations

DOJ U.S. Department of Justice

EEOC Equal Employment Opportunity Commission

EOUSA Executive Office for U.S. Attorneys

FMIS financial management information system

HCFAC Health Care Fraud and Abuse Control

HHS U.S. Department of Health and Human Services

No FEAR Notification and Federal Employee Antidiscrimination and 

Retaliation Act 

VICP National Vaccine Injury Compensation Program
Page 1 GAO-04-863 No FEAR Act

United States Government Accountability Office

Washington, D.C. 20548

A

July 22, 2004 Letr

Congressional Recipients

Allegations of violations of employment antidiscrimination and 

whistleblower protection laws against federal agencies can be resolved 

administratively with agency attorneys representing the agency. When 

such allegations end up in federal court, Department of Justice (DOJ) 

attorneys take over representation of the agency, with assistance provided 

by agency attorneys. DOJ attorneys within the Civil Division and the U.S. 

Attorneys’ Office, which handled the vast majority of the employment 

discrimination cases in fiscal year 2002, generally handle these federal 

employment cases. 

Generally, DOJ’s cost of conducting litigation on behalf of the federal 

government is paid for out of its appropriations, although its client 

agencies bear some costs when their attorneys assist DOJ. DOJ has 

authority in some instances to cover its cost of conducting litigation out of 

funds other than its appropriations, such as under the National Vaccine 

Injury Compensation Program—a no-fault alternative to the traditional tort 

system for resolving vaccine injury claims—and health care fraud and 

abuse claims.1

 

The Notification and Federal Employee Antidiscrimination and Retaliation 

Act of 2002 (No FEAR),2

 which took effect October 1, 2003, was intended to 

make federal agencies more accountable for their violations of 

employment discrimination and whistleblower protection laws. The act 

attempts to accomplish this by requiring agencies to reimburse the 

Judgment Fund3

 for employment discrimination and whistleblower 

settlements and judgments paid on their behalf.4 No FEAR does not require 

agencies to reimburse DOJ for costs incurred in defending them in cases 

1

For these types of cases, the department generally accounts for costs by group of cases.

2

Pub. L. No. 107-174, 116 Stat., 566 (May 15, 2002).

3

The Judgment Fund is a permanent, indefinite appropriation administered by the 

Department of the Treasury.

4

We previously issued a report on the potential financial impact on the Treasury Department 

of administering the No FEAR Act: U.S. General Accounting Office, Judgment Fund: 

Treasury’s Estimates of Claim Payment Processing Costs under the No FEAR Act and 

Contract Disputes Act, GAO-04-481 (Washington, D.C.: Apr. 28, 2004). 
Page 2 GAO-04-863 No FEAR Act

covered under the act. No FEAR does, however, require GAO to study and 

report on how DOJ could account for the cost of representing agencies in 

each case and what the burden of performing this accounting would be. 

This report provides information on (1) the methods DOJ officials say they 

could use to account for the personnel and nonpersonnel costs that DOJ 

incurs in handling cases covered under No FEAR per case and how soon 

the department expects to be able to do so and (2) how costly DOJ expects 

it would be to account for these costs per case. DOJ defines personnel 

costs as the total compensation—salaries, benefits, and awards—for 

attorneys and paralegals;5

 the nonpersonnel cost categories include all 

other costs, such as service contracts, rent, communications, and utilities.6 

Throughout this report we refer to attorneys and paralegals as “legal 

professionals.”

To address our objectives, we reviewed relevant laws and procedures and 

interviewed officials in the Executive Office for U.S. Attorneys (EOUSA) 

and the Civil Division. We obtained information from the Civil Division and 

EOUSA, which serves as a liaison between DOJ in Washington, D.C., and 

the U.S. Attorneys’ offices across the country. In this capacity, EOUSA 

provides operational and administrative support—including accounting—

to U.S. Attorneys. Neither office currently accounts for the per case cost of 

defending cases covered under No FEAR. For this reason, each office 

provided an example of the accounting methods it already uses for other 

groups of cases and described to us what changes would be necessary to 

begin accounting for costs of each case covered under No FEAR. EOUSA’s 

example is its accounting for the costs of health care fraud and abuse 

control cases by group of cases; the Civil Division’s example is its 

accounting for vaccine injury compensation cases by case. Using recent 

historical costs, EOUSA estimated the cost it would expect to incur in 

dollars. The Civil Division estimated its cost in staff time and did not 

convert this cost to dollars. These costs represent only estimates of how 

the department could account for No FEAR cases by case—there is no plan 

to do so—and do not reflect the total cost to DOJ of billing and seeking 

5

The Civil Division’s estimate also includes the time that staff would spend compiling data 

on No FEAR cases. 

6

Other nonpersonnel costs include: travel and transportation, mail management, printing 

and reproduction, operation and maintenance of facilities, medical care, operation and 

maintenance of equipment, use of financial management system, personnel services, payroll 

services, financial operations services, office automation, and equipment. 
Page 3 GAO-04-863 No FEAR Act

reimbursement for these cases. In commenting on a draft of this report, 

DOJ officials noted that such a process could also involve negotiating 

reimbursement agreements for individual cases, and they added that the 

costs of doing so could be significant. Moreover, DOJ officials stressed that 

the accounting methods discussed in this report are based on existing 

circumstances and if a decision is made to perform accounting by case for 

No FEAR cases, the methods chosen could differ.

We reviewed the supporting documentation that the offices provided to us 

related to these estimates and interviewed officials of both offices about 

them. On the basis of our assessment of DOJ’s estimates, which are not 

based on a formal, rigorous methodology, we determined that the data 

provided by DOJ were sufficiently reliable for purposes of illustrating a 

method that it could use for accounting by individual case. 

We conducted our work from November 2002 through May 2004 in 

accordance with generally accepted government auditing standards.

Results in Brief The two DOJ offices that handle cases covered under No FEAR say they 

could begin accounting for their costs of each of these cases by the 

beginning of fiscal year 2006 by changing their current systems and 

procedures. EOUSA could account for the costs of each case covered 

under No FEAR in fiscal year 2006 by adopting a modification of the 

method it uses to account for health care fraud cases. Rather than tracking 

the work they do on No FEAR cases by group in a manner similar to how 

they track their work on health care fraud cases, legal professionals within 

the U.S. Attorneys’ Office would be required to track their time by 

individual case. EOUSA would also need to revise its calculation of 

nonpersonnel costs to allocate these costs to individual cases instead of 

groups of cases, as EOUSA does now. The Civil Division could account for 

its costs of No FEAR cases by case by the beginning of fiscal year 2005 in 

the same way it currently conducts accounting by case for vaccine injury 

compensation cases. This would include identifying personnel costs by 

requiring Civil Division legal professionals to track their time for each No 

FEAR case on which they work and allocating nonpersonnel costs to each 

case using a formula based on the relative amount of time that legal 

professionals work on No FEAR cases versus all other cases.

If DOJ were to begin accounting for costs it incurs in cases covered under 

No FEAR by case, agency officials said such accounting would require both 

start-up costs and recurring costs. For EOUSA, accounting by case for No 
Page 4 GAO-04-863 No FEAR Act

FEAR cases would require about $535,000 in start-up costs, mostly for 

labor to modify computer systems. Although EOUSA officials did not 

provide an estimate of recurring costs, they indicated that these costs 

would not be substantial because the cost calculations required for 

accounting by case would be carried out electronically. EOUSA told us 

that the office might face resistance from many of its attorneys if they were 

required to begin tracking their time by case. Such resistance would stem 

from the culture in which the attorneys work. EOUSA explained that many 

U.S. attorneys believe that tracking their time by case could lead to an 

added emphasis on the number of cases being handled. Because the Civil 

Division already tracks costs by case for certain groups of cases and could 

use this method to account for each No FEAR case, the Civil Division said 

there would be no significant start-up costs to begin accounting for costs 

by case for No FEAR cases. Officials estimated an annual recurring cost of 

about 2 work weeks would be incurred and that the additional staff time 

spent on this task would compete with other responsibilities, such as 

responding to requests for financial information. DOJ officials said that if 

appropriate features are included, a DOJ-wide financial management 

information system that should be available to the Civil Division and 

EOUSA by fiscal year 2008 could make it less costly for the department to 

account for costs of No FEAR cases by case than the estimates they gave 

us. DOJ officials also said that a system that includes the ability to 

calculate and integrate personnel and nonpersonnel case costs 

electronically would enable both EOUSA and the Civil Division to account 

for the costs of cases covered by No FEAR by case more efficiently. 

DOJ provided technical and clarifying comments to a draft of this report, 

which we incorporated. With these changes, DOJ generally agreed with the 

facts presented in this report.

Background The types of cases covered by No FEAR include employment 

discrimination cases brought under various federal antidiscrimination 

statutes and certain prohibited personnel practice cases, including 

whistleblower protection. (See app. I for further information on the scope 

of laws covered by No FEAR.) No FEAR was intended to (1) make 

agencies more accountable for their violations of certain employee 

protection laws, (2) increase agencies’ compliance with these laws, and 

(3) improve congressional oversight. In addition to requiring agencies to 

repay the Judgment Fund, No FEAR attempts to accomplish these goals by 

requiring each agency to (1) provide employees written notification of, and 

training on, their rights under the laws covered by the act; (2) submit 
Page 5 GAO-04-863 No FEAR Act

annual reports on its No FEAR cases to congressional entities, the Equal 

Employment Opportunity Commission (EEOC), and the Attorney General; 

and (3) post on Treasury’s public Web site summary statistical data on 

employment discrimination complaints filed involving the agency.

The Civil Division has responsibility for a broad range of civil litigation, 

including defending the United States, its agencies, or officers in suits 

challenging the constitutionality, lawfulness, or propriety of presidential 

initiatives, federal statutes, and government programs and actions. The 

Civil Division delegates to the U.S. Attorneys in the states and U.S. 

territories the responsibility for handling a great many of these cases, 

including most No FEAR cases. For example, U.S. Attorneys handled the 

vast majority of employment discrimination cases in fiscal year 2002. No 

FEAR cases that are not handled by U.S. Attorneys are generally assigned 

to the appropriate part of the Civil Division. 

DOJ has authority in certain instances to cover its costs of providing 

litigation services out of funds other than its appropriations. For example, 

the Health Care Fraud and Abuse Control (HCFAC) program established by 

the Health Insurance Portability and Accountability Act of 19967

 includes 

the authority for DOJ to cover its costs incurred in engaging in HCFACrelated activities out of an account in the Federal Hospital Insurance Trust 

Fund. HCFAC is jointly administered by the Department of Health and 

Human Services (HHS), through its inspector general, and DOJ. Officials 

from these agencies work with federal, state, and local law enforcement to 

control fraud and abuse in health care, in both public and private health 

plans. The federal government won or negotiated more than $1.8 billion in 

judgments, settlements, and administrative awards in health care fraud 

cases and proceedings in fiscal year 2002, the latest year for which such 

figures are available. The U.S. Attorneys prosecute civil and criminal 

HCFAC cases in U.S. district courts and handle appeals in higher courts. 

The Civil Division is also involved in health care fraud cases. 

DOJ also has authority to cover its costs incurred out of funds other than 

its appropriations in cases under the National Vaccine Injury Compensation 

Program (VICP), which was established by the National Childhood Vaccine 

Injury Act of 19868

 and took effect October 1, 1988. HHS administers the 

7

Pub. L. No. 104-191, 110 Stat. 1936 (Aug. 21, 1996).

8

Pub. L. No. 99-660, Title III, 100 Stat. 3755-3784 (Nov. 14, 1986).
Page 6 GAO-04-863 No FEAR Act

program. Under the program, an individual claiming a vaccine-related 

injury or death can file a petition for compensation against the Secretary of 

HHS with the U.S. Court of Federal Claims, which determines if the 

individual is entitled to an award and, if so, the amount. DOJ defends HHS 

in these proceedings. The Vaccine Injury Compensation Trust Fund pays 

the awards and the federal government’s costs of administering the 

program, including the Civil Division’s costs in representing HHS.9

DOJ Could Adopt 

Modifications to Its 

Existing Methods to 

Account for Costs of 

Most No FEAR Cases 

by Case, Beginning in 

Fiscal Year 2006 

The two DOJ offices that handle No FEAR cases said they could account 

for costs by case by using a modification of the methods they now use to 

account for HCFAC and vaccine injury compensation cases. EOUSA stated 

that it could modify the electronic accounting it uses for the HCFAC group 

of cases to account for each case covered by No FEAR by case, beginning 

in fiscal year 2006. The Civil Division said that it could account for costs 

per case of No FEAR cases by the beginning of fiscal year 2005 in the same 

way it performs individual case accounting for VICP cases. The calculation 

of personnel and nonpersonnel costs for both offices under the modified 

scenario would be similar.

EOUSA Could Account for 

Each No FEAR Case by 

Adopting Modifications to 

Its Current Accounting for 

Health Care Fraud Cases

Officials from EOUSA told us that they could account for the costs of each 

case covered under No FEAR by using a modification of its current 

accounting procedures for the HCFAC group of cases beginning in fiscal 

year 2006. To calculate its cost for handling HCFAC cases as a group in a 

fiscal year, EOUSA calculates personnel and nonpersonnel costs separately 

and then adds them together. EOUSA officials told us that they determine 

the personnel costs of the HCFAC group of cases in a particular fiscal year 

in three steps: calculating the hourly compensation rates for each legal 

professional for all cases, calculating each of these individual’s total 

compensation for work performed on HCFAC cases, and adding these 

compensation amounts together. 

EOUSA officials told us that they determine nonpersonnel costs for HCFAC 

cases by allocating costs as a group based on the relative amount of time 

that its legal professionals worked on HCFAC cases versus all other cases. 

This calculation for a fiscal year is determined in three steps: determining 

the percentage of case hours its legal professionals were paid for work on 

9

26 U.S.C. 9510(c)(1)(B).
Page 7 GAO-04-863 No FEAR Act

HCFAC cases versus all other cases, applying this percentage to the cost 

for each nonpersonnel category for the HCFAC group of cases, and adding 

up the costs for each nonpersonnel cost category for HCFAC cases.

For EOUSA to begin accounting for personnel costs for each case covered 

under No FEAR, legal professionals within the U.S. Attorneys’ Office would 

have to change how they track their time. Instead of tracking their time by 

group of cases, as they do now, they would have to track their time by 

individual case, so that officials could determine the personnel time spent 

on each case. (See fig. 1.)

Figure 1: Calculations Necessary for DOJ to Begin Accounting for Personnel Costs 

of No FEAR Cases by Case for a Fiscal Year

a

Legal professionals include attorneys and paralegals working on a case.

b

Total compensation includes salaries, benefits, and awards.

c

Attorneys are paid for a maximum of 40 hours per week.

Source: GAO.

The legal 

professional’s total 

annual compensationb

The legal 

professional’s hourly 

compensation 

rate

The legal professional’s 

hourly compensation 

rate

Sum of all legal professionals' 

compensation for hours paid for 

work on the No FEAR case

The legal professional’s 

compensation for 

hours paid for work on 

the No FEAR case 

 Total hours paid to 

the legal 

professionalc

Number of hours the 

legal professional was 

paid for work on the No 

FEAR case

Total personnel 

costs for the 

No FEAR case

=

=

=

x

• Calculate the personnel costs for the No FEAR case.

• Calculate hourly compensation rate for each legal professional.a

• Calculate each legal professional’s compensation for work performed on a 

 No FEAR case.
Page 8 GAO-04-863 No FEAR Act

EOUSA officials said that to begin accounting for the nonpersonnel costs of 

each case covered under No FEAR would require a departure from its 

current accounting. EOUSA would need to calculate the nonpersonnel 

cost for each No FEAR case based on the relative amount of personnel time 

spent on that case versus all cases (see fig. 2). Cases requiring more 

personnel time would be allocated proportionately more nonpersonnel 

costs than cases requiring less personnel time. 

Figure 2: Calculations Necessary for DOJ to Begin Accounting for Nonpersonnel 

Costs of No FEAR Cases by Case for a Fiscal Year

a

Legal professionals include attorneys and paralegals working on a case.

b

Examples of nonpersonnel cost categories are GSA rent, service contracts, and printing. 

EOUSA officials said that to perform these calculations, they would need to 

modify EOUSA’s electronic systems for tracking personnel time and the 

Source: GAO.

Number of hours 

legal professionals were 

paid for work on the 

No FEAR case

Percentage of hours 

legal professionals 

were paid for work on 

the No FEAR case

Percentage of hours

legal professionals were 

paid for work on the 

No FEAR case

Sum of costs allocated to each 

nonpersonnel cost category for 

the No FEAR case

Cost allocated to 

the nonpersonnel 

category for the 

No FEAR case

Number of hours 

legal professionals

were paid for work 

on all cases

 Cost allocated to 

a nonpersonnel 

category for all 

cases

Total nonpersonnel 

costs allocated to 

the No FEAR case

=

=

=

x

• Calculate the total nonpersonnel costs for the No FEAR case.

• Calculate the percentage of case hours legal professionalsa were paid for work on a 

 No FEAR case.

• Calculate the cost for each nonpersonnel categoryb for the No FEAR case.
Page 9 GAO-04-863 No FEAR Act

legal activities to which that time is devoted. EOUSA estimates it could do 

this by the beginning of fiscal year 2006.

The Civil Division Could 

Use Current Methods to 

Account for No FEAR Cases 

by Case 

Civil Division officials told us that they could account for costs of cases 

covered by No FEAR by case by the beginning of fiscal year 2005 in the 

same way they already account for the individual costs of VICP cases. For 

each No FEAR case, personnel costs could be calculated by linking data 

from the case management system, which tracks the time legal 

professionals worked by case and group of cases, with payroll data. Other 

than travel costs, which can be tracked by case, nonpersonnel costs for an 

individual case are not tracked by the Civil Division; these costs could be 

allocated using a formula based on the relative amount of time that legal 

professionals work on No FEAR cases versus all other cases. 

Accounting for Costs 

of No FEAR Cases by 

Case Would Involve 

Start-Up Costs and 

Additional Staff Time, 

but DOJ Officials Said 

Neither Cost Would Be 

Substantial

If DOJ were to begin accounting for cases covered under No FEAR by case, 

EOUSA would incur start-up costs, but no substantial recurring costs, 

while the Civil Division would incur a recurring cost, but no substantial 

start-up costs. DOJ officials also said that an electronic financial 

management information system (FMIS) that the department is planning 

for use throughout DOJ beginning by fiscal year 2008 could make it easier 

for both offices to account for costs of these cases by case because it 

would track nonpersonnel costs.

Neither EOUSA nor the Civil 

Division Anticipates 

Substantial Costs

EOUSA estimates that accounting for the individual costs of cases covered 

under No FEAR would require about $535,000 in start-up costs—about 

$500,000 to modify its electronic case management system, which provides 

information to manage cases and track personnel costs, and about $35,000 

for administrative oversight. The $500,000 estimate consists of labor costs 

of 85 work weeks for workers with differing skill levels and is based on 

EOUSA’s knowledge of system architectures and estimates of the cost of 

comparable modifications. Once these changes were made, EOUSA 

officials told us that individual case accounting would be carried out 

electronically and would not involve substantial recurring costs, although 

the officials did not provide an estimate of these costs. 
Page 10 GAO-04-863 No FEAR Act

EOUSA officials noted that the office might face resistance from many of 

its attorneys if they were required to begin tracking their time by case. This 

resistance would stem from the culture within which the attorneys work. 

EOUSA officials explained that U.S. Attorneys believe that tracking their 

time by case could lead to an added emphasis on the number of cases being 

handled. 

The Civil Division estimated that it would incur 2 work weeks of recurring 

costs to produce cost reports required for accounting by case of No FEAR 

cases. The division would not have significant start-up costs because it is 

already accounting for certain groups of cases by case. Attorneys in the 

division’s litigating branches would have to begin flagging No FEAR cases 

with a special code that would then be entered into the division’s case 

management system. The system could then track the number of hours 

that attorneys and paralegals reported working on each No FEAR case. 

The Civil Division’s accounting staff would retrieve these data. The 

division did express concern that this work might compete with other staff 

responsibilities, such as responding to requests for financial information. 

Civil Division officials also noted that additional work would be involved if 

it were to start such accounting after the beginning of a fiscal year. In this 

scenario, the division would have to identify the No FEAR cases, identify 

personnel costs for each case, use a formula for estimating the 

nonpersonnel costs for each case based on the relative amount of time that 

legal professionals work on No FEAR cases versus all other cases, and use 

electronic spreadsheets to apply this formula. 

A New Financial 

Management Information 

System Could Make It 

Easier for DOJ to Account 

for Costs of No FEAR Cases 

by Case 

DOJ has recently started planning an electronic FMIS that is expected to be 

available departmentwide beginning in fiscal year 2008, although certain 

agencies within the department may be able to use the system before then. 

DOJ officials said that a system that includes features such as the ability to 

calculate and integrate personnel and nonpersonnel case costs 

electronically could make it less costly to account for the costs of 

individual cases covered by No FEAR than the estimates they gave us. DOJ 

officials based their statement on the expectation that FMIS’s ability to 

track nonpersonnel costs will make it possible to integrate data from its 

case management and financial management systems to track all costs 

directly. 
Page 11 GAO-04-863 No FEAR Act

Agency Comments On June 17, 2004, we provided a draft of this report to DOJ for review and 

comment. DOJ e-mailed clarifying and technical comments, which we 

incorporated. With these changes, DOJ officials indicated general 

agreement with the report. 

We will send copies of this report to interested congressional committees; 

the Attorney General; Assistant Attorney General, Civil Division; and the 

EOUSA Director. We will also make copies available to others upon 

request. In addition, the report will be available at no charge on GAO’s Web 

site at http://www.gao.gov. If you or your staff have questions about this 

report, please call me at (202) 512-9490 or Belva Martin, Assistant Director, 

on (202) 512-4285. Key contributors to this report are listed in appendix II.

George H. Stalcup

Director, Strategic Issues
Page 12 GAO-04-863 No FEAR Act

Congressional Recipients

The Honorable Ted Stevens

President Pro Tempore

United States Senate

The Honorable J. Dennis Hastert

Speaker of the House

House of Representatives

The Honorable Susan M. Collins

Chairman

The Honorable Joseph I. Lieberman

Ranking Minority Member

Committee on Governmental Affairs

United States Senate

The Honorable F. James Sensenbrenner, Jr.

Chairman

The Honorable John Conyers, Jr.

Ranking Minority Member

Committee on the Judiciary

House of Representatives

The Honorable Jo Ann Davis

Chairwoman

The Honorable Danny K. Davis

Ranking Minority Member

Subcommittee on Civil Service

and Agency Organization

Committee on Government Reform

House of Representatives
Page 13 GAO-04-863 No FEAR Act

Appendix I

Scope of Laws Covered by the No FEAR Act ApApenednxidexiIs

No FEAR cases include cases brought in federal district court by job 

applicants and current or former federal employees under any of the 

provisions of the following laws:1

 (1) section 717 of the Civil Rights Act of 

1964, as amended,2 which prohibits discrimination on the basis of race, 

color, religion, sex, or national origin; (2) sections 12 and 15 of the Age 

Discrimination in Employment Act of 1967,3

 which prohibits discrimination 

on the basis of age; (3) the Equal Pay Act of 1963,4 which prohibits sexbased wage discrimination, and (4) section 501 of the Rehabilitation Act of 

1973,5

 which prohibits discrimination on the basis of disability. Prior to 

filing in federal court, individuals alleging violations of these discrimination 

laws typically are required to exhaust administrative remedies.

No FEAR cases also include cases appealed from the Merit Systems 

Protection Board (MSPB)6

 to federal court, such as the U.S. Federal Circuit 

Court of Appeals, alleging violation of certain prohibited personnel 

practices—most notably retaliation for whistleblowing.7

Agency attorneys are responsible for representing their agency while a 

matter is at the administrative stage, either before EEOC or MSPB. 

However, once a matter is filed in district court or appealed to the U.S. 

Federal Circuit Court of Appeals, DOJ attorneys generally take over 

representation of the agency, with assistance provided by counsel from the 

client agency.

1

No FEAR cases are identified under section 201 of the act. Section 201(a)(2) permits the 

identification of additional cases through implementing regulations.

2

42 U.S.C. § 2000e-16.

3

29 U.S.C. § 631, 633a.

4

29 U.S.C. § 206(d).

5

29 U.S.C. § 791.

6

MSPB is an independent, quasijudicial agency in the executive branch.

7

Section 201(c)(1).
Page 14 GAO-04-863 No FEAR Act

Appendix II

GAO Contact and Staff Acknowledgments ApendxiI

GAO Contact Belva Martin, (202) 512-4285

Acknowledgments Karin Fangman, Amy Friedlander, Domingo Nieves, and Michael Rose also 

made key contributions to this report.

(450327)
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