COURTS OF APPEALS, DISTRICT COURTS, AND OTHER JUDICIAL SERVICES

Defender Services

SUMMARY STATEMENT OF ACCOUNT REQUIREMENTS

Fiscal Year 2022 Assumed Appropriation 1,343,338

Fiscal Year 2023 Appropriation Request 1,461,711

 Requested Increase from Fiscal Year 2022 Assumed Appropriation 118,373

APPROPRIATION LANGUAGE

COURTS OF APPEALS, DISTRICT COURTS, AND OTHER JUDICIAL SERVICES

DEFENDER SERVICES

 For the operation of Federal Defender organizations; the compensation and reimbursement of expenses of attorneys appointed to represent persons under 18 U.S.C. 3006A and 

3599, and for the compensation and reimbursement of expenses of persons furnishing investigative, expert, and other services for such representations as authorized by law; the 

compensation (in accordance with the maximums under 18 U.S.C. 3006A) and reimbursement of expenses of attorneys appointed to assist the court in criminal cases where the defendant 

has waived representation by counsel; the compensation and reimbursement of expenses of attorneys appointed to represent jurors in civil actions for the protection of their employment, 

as authorized by 28 U.S.C. 1875(d)(1); the compensation and reimbursement of expenses of attorneys appointed under 18 U.S.C. 983(b)(1) in connection with certain judicial civil 

forfeiture proceedings; the compensation and reimbursement of travel expenses of guardians ad litem appointed under 18 U.S.C. 4100(b); and for necessary training and general 

administrative expenses, [$1,343,338,000]$1,461,711,000 , to remain available until expended.

(H.R. 4502 - House-passed version of the Financial Services and General Government Appropriations Act, 2022)

 5.1
Fiscal Year 2023 Resource Requirements:

Page FTE Amount

3,383 1,437,656 

- - 

3,383 1,437,656 

Less:

- 126,718 

- (32,400)

- 94,318 

3,383 1,343,338 

Adjustments to Base to Maintain Current Services:

A. PERSONNEL RELATED

Pay and Benefit Adjustments

1. Proposed January 2023 pay adjustments

5.24 - 20,252 

5.24 - 863 

5.25 - 1,702 

5.25 2. Annualization of January 2022 pay adjustments

- 3,774 

- 532 

- 6,307 

5.26 - 4,193 

5.26 4. Benefits increases

- 1,367 

- 400 

5.26 - (2,245) 

B. OTHER ADJUSTMENTS

General Inflationary Adjustments

5.26 - 6,782 

5.26 - 1,293 

Fiscal Year 2022 Assumed Appropriation .......................................................................................................................................

a. Federal pay adjustment (2.7% for three months) ....................................................................................................................

Fiscal Year 2022 Obligations Excluding Encumbered Carryforward ...........................................................................................

Fiscal Year 2022 Obligations ............................................................................................................................................................

 Less encumbered carryforward from FY 2021 into FY 2022 ............................................................................................................

 Unencumbered available carryforward from FY 2021 into FY 2022 ................................................................................................

a. Federal pay adjustment (4.6% for nine months) ....................................................................................................................

b. Panel attorney capital rate adjustment (from $202 per hour to $210 per hour, effective January 1, 2023) ............................

c. Panel attorney non-capital rate adjustment (from $158 per hour to $164 per hour, effective January 1, 2023) ......................

 Transfer to Salaries & Expenses .......................................................................................................................................................

 Total unencumbered carryforward ....................................................................................................................................................

SUMMARY OF REQUEST

DEFENDER SERVICES

FISCAL YEAR 2023

(Dollar amounts in thousands)

3. Promotions and within-grade increases .....................................................................................................................................

a. Health benefits .......................................................................................................................................................................

c. Panel attorney non-capital rate adjustment (from $155 per hour to $158 per hour) ................................................................

b. Panel attorney capital rate adjustment (from $197 per hour to $202 per hour) ......................................................................

6. Inflationary increases for contracts, services, supplies, and equipment .......................................................................................

7. Inflationary increase in GSA space rental costs ..........................................................................................................................

b. FICA adjustment ..................................................................................................................................................................

5. One less compensable day ..........................................................................................................................................................

 5.2
Page FTE Amount

5.27 - (19,518) 

5.27 59 15,091 

5.27 10. Increase in appropriation needed to maintain FY 2022 requirements due to a decrease

- 64,318 

59 105,111

3,442 1,448,449 

C. PROGRAM INCREASES:

11. Positions for projected workload

5.27 (9) (2,431) 

5.28 5 995

5.28 22 4,862

5.28 - 669 

5.28 - 9,167 

18 13,262

3,459 1,461,711 

77 118,373

D. FINANCING THE FISCAL YEAR 2023 REQUEST:

3,459 1,461,711 

5.30 - 30,000

3,459 1,491,711 

b. National positions .................................................................................................................................................................

 8. Change in projected panel attorney workload .............................................................................................................................

Workload and Financing Adjustments

 9. Annualization of FY 2022 positions ...........................................................................................................................................

 in carryover funding ..................................................................................................................................................................

 Subtotal, Adjustments to Base to maintain current services ...............................................................................................

Total Current Services Appropriation Required ............................................................................................................................

a. FDO staffing formula positions ............................................................................................................................................

c. McGirt v. Oklahoma positions ..............................................................................................................................................

Estimated Obligations, Fiscal Year 2023 .........................................................................................................................................

12. Reimbursable positions ............................................................................................................................................................

Total Fiscal Year 2023 Appropriation Required ............................................................................................................................

Total Appropriation Increase, Fiscal Year 2022 to Fiscal Year 2023 ............................................................................................

Total Appropriation Required .........................................................................................................................................................

14. Anticipated carryforward from FY 2022 and prior years into FY 2023 ....................................................................................

13. Information technology, cybersecurity, and IT modernization requirements ............................................................................

 Subtotal, program increases ..................................................................................................................................................

5.3
FY 2021 FY 2022 FY 2023

Activity Actual Assumed Request

CJA Representation & Related Expenses Obligations 1,210,228 1,420,237 1,472,271

Program Administration Obligations 8,947 17,419 19,440

Direct Obligations 1,219,175 1,437,656 1,491,711

Unencumbered Unobligated Balance, Start of Year (21,003) (126,718) (30,000)

Encumbered Unobligated Balance, Start of Year (370)

Total Unobligated Balance, Start of Year: (21,373) (126,718) (30,000)

Deposits and Other Adjustments:

Prior Year Recoveries (8,258) (10,000)

Anticipated Financial Plan Savings (20,000)

Transfer 0 32,400

Unobligated Balance, End of Year: 126,718 30,000

Less Offsetting Collections (21)

Appropriation 1,316,240 1,343,338 1,461,711

Direct Appropriations 1,316,240

COURTS OF APPEALS, DISTRICT COURTS, AND OTHER JUDICIAL SERVICES

DEFENDER SERVICES

Obligations by Activity ($000)

5.4
FY 2021 FY 2022 FY 2023

Actual Assumed Request

11.1 Full-time permanent 376,847 421,624 451,979

11.3 Other than full-time permanent 8,153 9,122 9,630

11.5 Other personnel compensation 450 504 532

11.8 Special personal services 13 15 16

11.9 Personnel compensation subtotal 385,463 431,264 462,157

12.1 Personnel benefits 140,996 156,336 163,338

13.0 Benefits for former personnel 678 668 685

21.0 Travel 4,742 15,625 15,961

22.0 Transportation of things 254 403 421

23.1 Rental payments to GSA 45,528 48,938 51,056

23.2 Rental payments to others 1,084 1,150 1,177

23.3 Communications, utilities, and miscellaneous charges 10,708 12,081 15,639

24.0 Printing and reproduction 66 123 127

25.1 Advisory and assistance services 368,310 467,571 466,110

25.2 Other services from non-federal sources 47,561 60,379 60,088

25.3 Other goods and services from federal sources 6,130 7,782 7,745

25.4 Operations and maintenance of facilities 6,678 8,478 8,437

25.6 Medical care 347 440 438

25.7 Operations and maintenance of equipment 1,331 1,689 1,681

26.0 Supplies and materials 1,618 2,130 2,245

31.0 Equipment 24,183 25,315 30,261

41.0 Grant payments 173,497 197,282 204,144

42.0 Insurance claims and indemnities 0

Direct Obligations 1,219,175 1,437,656 1,491,711

FY 2021 FY 2022 FY 2023

Actual Assumed Request

CJA Representation & Related Expenses Obligations1/ 3,091 3,372 3,448

Program Administration Obligations 10 11 11

Total FTE 3,101 3,383 3,459

1/ The FTE listed are attributable to Federal Public Defender Organization staff.

Activity

Description

Obligations by Budget Object Class ($000)

Full-time Equivalents (FTE) by Activity

 5.5
FY 2021 FY 2022 FY 2023

Actual Assumed Request

1 Direct obligations 1,219,175 1,437,656 1,491,711

2 Obligated balance, start of year 74,965 99,065 136,661

3 Recoveries of prior year unpaid obligations (7,042) (10,000) (10,000)

4 Change in uncollected payments 1 0 0

5 Obligated balance, end of year (99,065) (136,661) (72,935)

6 Total Outlays 1,188,033 1,390,060 1,545,437

7

8 Less Offsets (1,238) (5,000) (5,000)

9

10 Net Outlays 1,186,796 1,385,060 1,540,437

11

COURTS OF APPEALS, DISTRICT COURTS, AND OTHER JUDICIAL SERVICES

DEFENDER SERVICES

Relation of Obligations to Outlays ($000)

5.6
5.7 

GENERAL STATEMENT AND INFORMATION

The right to effective assistance of counsel for persons financially unable to obtain adequate representation is constitutionally

mandated. It is a critical component of the criminal justice system and one of the foundations of liberty in America. The Defender 

Services appropriation supports the appointment of counsel and other related services required to be provided under the United States 

Constitution; the Criminal Justice Act (CJA), 18 U.S.C. § 3006A; and other statutes. It also provides for the continuing education and 

training of persons who furnish representational services under the CJA. 

The constitutional right to the assistance of counsel is a cornerstone of the criminal justice system. In Gideon v. Wainwright, 372 U.S. 

335, 344 (1963), the United States Supreme Court wrote: “The right of one charged with [a] crime to counsel may not be deemed 

fundamental and essential to fair trials in some countries, but it is in ours.” The mission of the Defender Services program is to ensure 

that the Sixth Amendment right to counsel is available to those who cannot afford to retain counsel and other necessary defense 

services. 

The goals of the Defender Services program are to: 

1. provide timely counsel services to all eligible persons;

2. provide appointed counsel services consistent with the best practices of the legal profession;

3. provide cost-effective services; and

4. protect the independence of the defense function performed by assigned counsel so that the rights of individual defendants are

safeguarded and enforced.

By fulfilling its mission, the Defender Services program helps to: 

• ensure the successful operation of the constitutionally based adversarial system of justice by which both federal criminal laws

and federally guaranteed rights are enforced; and

• maintain public confidence in the nation’s commitment to equal justice under law.

The Defender Services account funds the operations of federal defender organizations (FDOs), payments to private attorneys 

appointed under the CJA, and program administration costs. The fiscal year (FY) 2023 appropriation request of $1,461.7 million will

enable FDOs and private attorneys to accept CJA appointments; retain necessary expert services; and undertake case-related travel. 
5.8 

The FY 2023 request will support additional: 

• FDO staffing to support 98 percent of the projected staffing formula requirements (caseload adjusted);

• funding for staffing to support an increase in caseload as a result of the Supreme Court’s decision in McGirt v. Oklahoma, 591

U.S. __ (2020) (McGirt);

• reimbursable staff in the Defender Services Office (DSO) of the Administrative Office of the U.S. Courts (AO);

• national positions for the National Litigation Support Team (NLST) and National Information Technology Operations and

Applications Development (NITOAD) branch; and

• information technology (IT) and cybersecurity and IT modernization requirements.

TYPES OF COUNSEL

The CJA authorizes the appointment of counsel, who are either (1) attorneys employed by an FDO or (2) private attorneys retained to 

represent clients (these private attorneys are known as “panel attorneys”). Each is described below. 

Federal Defender Organizations 

The CJA authorizes two types of FDOs: 

• federal public defender organizations (FPDOs), which are part of the judiciary; and

• community defender organizations (CDOs), which are private, state-chartered, non-profit corporations funded by annual

federal judiciary grants.

An FDO (whether an FPDO or a CDO) may be established in any district (or combination of districts) in which at least 200 CJA 

appointments are made annually. There are currently 82 FDOs authorized to serve 91 of the 94 judicial districts. (Georgia-Southern 

and Kentucky-Eastern meet the requisite number of appointments but do not have an FDO. Northern Mariana Islands does not meet 

the requisite number of appointments.) 

FDOs are the flagship of federal criminal defense, delivering high-quality representation at reasonable costs while safeguarding the 

rights of individuals under the Constitution. They recruit, train, and retain lawyers with skills comparable to those who prosecute 
5.9 

criminal matters in U.S. Attorneys’ offices. Because of their expertise and efficiencies, FDOs provide cost-effective defense services 

consistent with the best practices of the legal profession. 

FDO attorneys are available for appointment on short notice, ensuring that the rights of the accused are protected and that court 

operations are not disrupted. FDOs also make optimal use of national resources by sharing their expertise and best practices with 

other FDOs and panel attorneys. 

FDO staff improve the overall quality of CJA representation within the districts they serve by providing expert advice, training, and 

other assistance to panel attorneys in complex legal and technical areas such as sentencing, mitigation, litigation support, and cases 

involving death penalty issues. 

Panel Attorneys

A panel attorney is a private lawyer who serves on a panel of qualified counsel maintained by the district or appellate court and is 

appointed by the court to represent eligible individuals in accordance with the CJA. The CJA specifies that in all judicial districts 

(including those served by an FDO), private attorneys shall be appointed “in a substantial proportion of the cases.” 18 U.S.C. 

§ 3006A(a)(3).

Panel attorneys are also primarily utilized for three other reasons. 

(1) Ethical standards prohibit appointing FDOs in conflict-of-interest situations (e.g., an FDO is precluded from representing more

than one defendant in a multi-defendant case and is disqualified from accepting a new appointment that may present a conflict

with the interests of previously represented clients).

(2) The workload demands in some FDOs periodically limit the ability of that FDO to accept new representations and

maintain professional ethical standards.

(3) The district is not served by an FDO. As noted above, three districts currently do not have an FDO.

Nationally, almost 90 percent of CJA panel attorneys are in small law firms (with five or fewer lawyers), and approximately 60 

percent are solo practitioners. The CJA provides that these attorneys shall be reimbursed for their expenses and compensated for their 

services at authorized hourly rates. 
5.10

CJA CASELOAD AND WORKLOAD TRENDS

Attorneys appointed under the CJA (FDO attorneys and private panel attorneys) provide constitutionally required defense services in a 

wide variety of complex criminal cases, such as international and domestic terrorism; cybercrime; child exploitation and obscenity; 

complex fraud cases (health care, identity theft, public corruption, and bank and investment fraud); environmental crimes; drug cases; 

immigration matters; human trafficking; and all other federal crimes.

To determine FDO staffing requirements1 in this FY 2023 budget request, a five-year statistical average is used that includes actual 

data from 2018 – 2021 and projected data for 2022. As shown in the following chart, FDO weighted representations2 increased 

significantly between statistical years3 2017 and 2019 and remained at a high level in 2020. Although the caseload declined in 2021 

as a result of the COVID-19 pandemic, the caseload is projected to rebound in 2022 and 2023 as the effects of the pandemic dissipate 

and caseloads return to their historical levels. For a discussion of the COVID-19 pandemic's impact on workload, see COVID-19 -

Impact on page 5.14.

FDO Weighted Representations

Workload Factor 2017

Actual

2018

Actual

2019

Actual

2020

Actual

2021

Actual

2022

Projected

2023

Projected

FDO Weighted Representations –

Non-capital 131,024 142,750 152,496 151,025 116,721 133,500 142,200

FDO Weighted Representations –

Capital Prosecution* 2,752 2,101 1,174 1,019 663 800 900

Total FDO Weighted Representations 133,776 144,851 153,670 152,044 117,384 134,300 143,100

Year-to-Year Change 8.3% 6.1% -1.1% -22.8% 14.4% 6.6%

*Actual non-weighted capital prosecutions from 2017 – 2021 range from 12 to 47 per year.

1 FDO workload forecasts, as with all other judiciary workload projections, are prepared by the Administrative Office of the U.S. Courts’ Judiciary Data and 

Analysis Office.

2 Since FY 2016, the Defender Services program has used a comprehensive set of staffing formulas to determine FDO staffing requirements. These staffing 

formulas, developed using the same procedures as the rest of the judiciary, establish a fair, equitable, and rigorous basis for calculating and allocating FDO

personnel. The judiciary uses a weighted caseload methodology for the federal defender portion of the Defender Services appropriation request to account for 

the complexity and resource intensity of FDO caseload. This methodology more precisely determines FDO staffing requirements. Instead of using raw, or 

unweighted case numbers, the formula uses a five-statistical-year average of FDO weighted representations to calculate the number of positions for each office. 

Using a five-statistical-year average provides a measure of protection against volatility in caseload. 3 An FDO statistical year is a period of one year beginning on April 1 of one year and ending on March 31 of the subsequent year.
5.11

The pandemic resulted in a sudden drop in weighted representations, one that is expected to be temporary in nature. The impact of the 

COVID-19 pandemic and its associated disruption to the economy, and society more broadly, is reflected in notable year-to-year 

differences in several major case groups, including Immigration – Illegal Re-Entry, Fraud, and Drug Representations, as shown in the 

chart below: 

Major Types of FDO Weighted Representations*

Case Group 2020 2021 Percent Change

Drug Representations 18,381 14,602 -20.6

Immigration – Illegal Re-Entry 21,946 7,441 -66.1%

Fraud 7,535 4,850 -35.6%

Weapons Representations 16,625 14,649 -11.9%

Criminal-Other 51,329 41,772 -18.6%

Habeas Corpus (Non-capital) 879 1,024 16.5%

Other 15,870 17,382 9.5%

*Statistical data is for a 12-month period through March 31 of each year.

Changes in technology, prosecution tactics and priorities, legislation, sentencing policy, and case law all add to the challenge of 

providing representation to eligible individuals in federal courts. The Defender Services program must respond to changes in case 

law, such as those resulting from Supreme Court decisions, changes in the U.S. Sentencing Guidelines, statutory changes, and 

changing priorities in federal law enforcement such as the opioid crisis and violent crimes initiatives. While providing representation 

in these complex matters, CJA attorneys must also be able to respond rapidly to changes in law and practice since these changes are 

likely to result in new causes of action for FDOs and panel attorneys. When these changes happen quickly or without sufficient 

advance notice, it can take multiple budget cycles for their impacts to be fully reflected in the Defender Service’s appropriations 

request.

For example, the CARES Act (enacted in March 2020), which allowed courts to waive the limits on home confinement that restricted 

eligibility to the last 10 percent of an individual’s sentence, and the First Step Act (enacted in December 2018), which eliminated the 

mandatory “exhaustion” of the administrative appeals and process requirement with the Bureau of Prisons, increased the number of 

compassionate release cases filed by FDOs, especially during the COVID-19 pandemic. This activity continued into 2021. The 
5.12

Supreme Court decision in McGirt v. Oklahoma, 591 U.S. __ (2020) changed the jurisdiction from state to federal court over 

numerous types of felony cases involving Indian persons or property in Oklahoma. This is leading to an increase in representations 

not fully captured in current workload projections that were calculated based on historical workload which did not include the more 

recent influx of McGirt-related cases. In addition, changes in state law, such as California’s Proposition 66 that speeds up state court 

review of capital judgments, may also impact the Defender Services program.

Department of Justice (DOJ) policy also drives caseload for the CJA. For example, in FY 2022, DOJ requested a total of $99.4 

million (200 positions) in order to provide additional funding and staff for the following programs: COVID-related fraud, domestic 

terrorism, and McGirt prosecutions.4 If these requests are funded and implemented, related caseload is expected to increase. 

As shown below, panel attorney representations were increasing prior to statistical year (SY) 2021 but declined due to the COVID-19 

pandemic. However, as the effects of the pandemic decline, panel attorney representations are projected to rebound by SY 2023. To 

determine panel attorney requirements in this FY 2023 budget request, SY 2023 projected workload was used (72,600

representations5

).

Panel Attorney Representations*

Workload Factor

2017

Actual

2018

Actual

2019

Actual

2020

Actual

2021

Actual 

2022

Projected

2023

Projected

Panel Attorney Representations 79,352 77,130 89,079 93,189 64,326 65,300 72,600

Year-to Year Change -2.8% 15.5% 4.6% -31.0% 1.5% 11.2%

*Statistical data is for a 12-month period through March 31 of each year.

The following chart reflects panel attorney representations and payments by fiscal year. In FY 2021, panel attorney payments 

decreased from $452.9 million in FY 2020 to $373.0 million in the wake of the COVID-19 pandemic, a decline of $79.9 million 

4 https://www.justice.gov/jmd/page/file/1398566/download

5 CJA Panel representations are based on vouchers paid during the 12-month period. If no voucher was paid, no representation is counted. The judiciary relies 

on a forecast of unweighted representations for estimating the panel attorney portion of the appropriation request. This projection is based on one representation 

for each case, regardless of the case type.
5.13

(17.6 percent). In addition, total panel attorney representations decreased by 16,224 (20.9 percent) from 77,770 in FY 2020 to 61,546 

in FY 2021. 

Panel Attorney Representations and Payments

Offense Type FY 2020 Reps

FY 2020 Payments

($ in millions) FY 2021 Reps

FY 2021 Payments

($ in millions)

Capital Prosecution 711 $47.2 643 $33.3

Drugs 19,192 $157.5 17,886 $127.8

Immigration 20,080 $29.7 7,593 $18.2

Fraud 3,115 $33.5 2,472 $27.6

Weapons 4,535 $35.9 4,413 $31.9

Capital Habeas 350 $16.3 288 $13.1

Appeals 5,131 $35.0 4,287 $32.4

Criminal - Other 24,656 $97.8 23,964 $88.6

 Total 77,770 $452.9 61,546 $373.0

* Fiscal year data is for a 12-month period through September 30 of each year.

In accordance with anticipated ECI increases, the panel attorney hourly rates are projected to increase from FY 2022 to FY 2023 for 

non-capital and capital representations from $158 to $164 and $202 to $210, respectively. 

FISCAL YEAR 2022 APPROPRIATIONS

In the absence of an enacted FY 2022 appropriation, the judiciary built the FY 2023 discretionary budget request for the Defender 

Services account on an assumed FY 2022 appropriation of $1,343.3 million which is the FY 2022 fall re-estimate level. This 

amount fully funds the FY 2022 budget request, including hiring an additional 134 FDO positions to address additional workload 

requirements, a staffing reserve, and start-up costs for a new FDO. In addition, this appropriation level assumes $4.5 million in 

funding for cybersecurity improvements and development related to bandwidth increases and application modernization, network 

management, and data security.
5.14

For bill language for this account, the judiciary used the relevant language from H.R. 4502, which includes the House-passed version

of the Financial Services and General Government Appropriations Act, 2022, as the closest approximation of eventual enacted FY 

2022 appropriations language, updated with the assumed funding level as described above. 

After full-year fiscal year 2022 appropriations are enacted, the judiciary will re-estimate its FY 2023 budget request and transmit to 

the Appropriations Committees any changes to FY 2023 appropriations requirements and bill language. 

SIGNIFICANT ISSUES FOR FISCAL YEAR 2023 

COVID-19 Impact 

As with all aspects of society, the pandemic continues to impact both the FDOs and the CJA panel attorneys. After the initial COVID19-driven caseload decline, the program has been subject to volatility, similar to the country as a whole, as the pandemic evolves.

FDOs recorded 152,044 weighted cases opened (WCO) in SY 2020, averaging 12,670 WCO monthly. Due to the COVID-19 

pandemic, WCO declined to 117,384 in SY 2021, averaging 9,782 WCO monthly. Since April 2021, WCO has rebounded to reach a 

monthly average of approximately 11,400 WCO. Caseload is currently projected to continue to increase in FY 2023 as the 

pandemic’s impact on the justice system is expected to ease.

Continued Impact of the McGirt Decision

While the July 9, 2020, Supreme Court decision in McGirt held that federal jurisdiction existed for an offense committed on the Creek 

Nation, arising under the Major Crimes Act (“MCA”), its precedent has had far greater implications.6

 The Court’s decision found that 

the Creek Reservation was never disestablished and thus, the federal government, rather than the state, must prosecute major crimes

involving Indian defendants in that jurisdiction for offenses such as murder, rape, sexual assault, and robbery. McGirt v. Oklahoma, 

591 U.S. __ (2020). 

Over the intervening year and a half, the Oklahoma Court of Criminal Appeals (OCCA) expanded McGirt’s reasoning to the lands of 

the “Five Civilized Tribes” of Oklahoma, including the Cherokee, Chickasaw, Choctaw, and Seminole Nations. These decisions 

6 The Major Crimes Act (MCA) gives federal courts exclusive jurisdiction over certain enumerated serious crimes committed by “any Indian . . . against the 

person or property of another Indian or any other person” within “Indian country.” See 18 U.S.C. § 1153(a).
5.15

recognize that nearly half of Oklahoma remains “Indian country,” and should have always been under federal jurisdiction. 18 U.S.C. 

§ 1151. Recently, the OCCA applied the McGirt rationale to the Quapaw Nation Reservation, located in the northeastern corner of

Oklahoma. State v. Lawhorn, 2021 OK CR 37 (Oct. 21, 2021). However, the OCCA limited McGirt’s reach when it denied

retroactive application for state convictions that had completed appellate review and were deemed final. State ex rel. Matloff v.

Wallace, 2021 OK CR 21 (Aug. 12, 2021). The impacted defendant in Matloff filed a petition for certiorari with the Supreme Court

arguing for retroactive application of McGirt, and this petition is currently pending.7

The renewed “Indian country” status forced Oklahoma state courts to cede further jurisdiction to federal courts in the affected areas 

for cases involving the General Crimes Act (GCA). 18 U.S.C. § 1152. Federal law also applies when the offense involves (1) nonNative defendants but Native American victims on tribal lands, or (2) the Assimilated Crimes Act, 18 U.S.C. § 13, applying state 

statutes where no federal equivalent exists. The Oklahoma Attorney General has responded by filing more than 30 petitions of 

certiorari with the Supreme Court to maintain its previous state jurisdiction. The petitions argue generally for McGirt to be overturned 

due to its impact on the state criminal justice system and specifically for concurrent state jurisdiction in GCA offenses. In the 

meantime, the DOJ is treating the issue as settled federal law, citing the GCA at least in part for jurisdiction in more than 280 cases 

filed in the Northern and Eastern districts of Oklahoma. Litigation to define the parameters of McGirt will likely extend into the 

foreseeable future. 

Data from the AO’s Judiciary Data and Analysis Office (JDAO) indicates that in the twelve-month period following the McGirt

decision (August 2020 – July 2021), felony filings in the Eastern district of Oklahoma increased by 274 percent and in the Northern 

district of Oklahoma by 195 percent when compared to the same period one year earlier (August 2019 – July 2020). These increases 

reflect filings for the initial five impacted tribes, but do not demonstrate the full caseload as a backlog of cases persists due to capacity 

limitations and the lingering effects of the COVID-19 pandemic. 

Because the number of new cases filed in federal court are dependent on the prosecutorial discretion of the U.S. Attorney’s Office, it 

is difficult to predict the magnitude of future criminal filing increases. The courts and defender offices must rely on information and 

estimates from the Offices of the U.S. Attorneys (U.S. Attorneys). In FY 2022, the DOJ requested $33 million in additional McGirt

funding for the U.S. Attorneys in Oklahoma, as well as another $36.9 million for related local federal law enforcement agencies.8

 

There are ongoing cross-functional meetings between the impacted court units and the DOJ to plan for future staffing and resource 

7 Parish v. Oklahoma, petition for cert. pending, No. 21-467 (filed Sept. 27, 2021). 8 https://www.justice.gov/jmd/page/file/1398851/download.
5.16

needs. As for case numbers, the DOJ’s request for the United States Attorneys appropriation included the following in their FY 2022 

Congressional Justification9

:

“Criminal felony caseloads in the U.S. Attorneys for the Eastern and Northern Districts of Oklahoma 

have increased exponentially and will continue to increase sharply as the McGirt decision is expanded. It 

is estimated that they will handle up to 4,400 additional felony defendants per year – or 366 per month –

once the decision is being fully applied to all five Civilized Tribes. This number represents more than a 

25,000 percent increase over the average number of Indian country defendants charged over the prior 

three fiscal years.”

DOJ continues to refine its projections as more information and experience are gained. 

To respond to the rapid caseload increase, the FY 2021 Defender Services financial plan funded 22 positions for McGirt, and the 

FY 2022 and FY 2023 requests include 32 and 44 more positions, respectively. In addition, in Fall 2021, the Appropriations 

Committees approved the judiciary’s request to establish a stand-alone FDO in the Eastern District of Oklahoma (giving the state an 

FDO in all three districts). Lastly, as a temporary measure while the Oklahoma FDOs acquire the necessary resources to respond to 

the sudden surge in caseload from McGirt, 41 FDOs from outside of Oklahoma, and panel attorneys from across the country, accepted 

case appointments stemming from McGirt. 

Infrastructure Requirements

This request assumes that there is $4.5 million in the FY 2023 base for IT infrastructure requirements and requests an additional $8 

million, for a total of $12.5 million. This FY 2023 request for the additional $8 million includes funding for critical IT infrastructure 

requirements in the following areas: 

Data Center Migration ($1,000,000)

The judiciary has two national data centers that host judiciary networks, applications and servers and facilitate the connectivity 

between the judiciary’s IT infrastructure and the internet. The building that currently houses the west coast data center in San Diego 

9 U.S. Attorneys, U.S. DEPARTMENT OF JUSTICE FY 2022 CONGRESSIONAL JUSTIFICATION, https://www.justice.gov/jmd/page/file/1398566/download, p. 44 (FY 

2022).
5.17

and the judiciary, including Defender Services, must fund the relocation of its equipment and data center operations by July 2024. The 

requested funding supports the projected cost of new hardware to stand up the data center and labor costs to support the move. 

Cybersecurity Support ($750,000)

Cybersecurity is constantly evolving and has become one of Defender Services’ top IT priorities. This request will allow Defender 

Services to simulate cyberattacks and provide candid insight regarding the cybersecurity posture of FDOs. It will also enable 

coordination with local FDO IT staff to evaluate and address security weaknesses on the local network and provide advanced training 

for local IT staff to ensure a common security baseline. This request for an additional $750,000, increases the total funding available 

for infrastructure cybersecurity support from $2.8 million to $3.55 million. 

DSO Networks, Governance, and Services Modernization ($2,907,000)

Defender Services seeks to establish the governance for hybrid cloud services and finalize Concept of Operations (CONOPS) for 

commercial cloud offerings. DSO will pilot cloud use cases in order of their priorities, to establish standards, guidelines, and best 

practices for each use case. This will allow DSO to establish a cloud environment for the needs of the FDOs and reduce the footprint 

of equipment in the data centers. This request for an additional $2.9 million increases the total funding available for DSO networks, 

governance, and services from $1.1 million to $4.0 million.

Data Security Management and Improvement ($2,585,000)

It is essential to the judiciary’s viability to increase the use of digital tools to replace manual or paper-based workflows. This 

improvement includes providing document collaboration capabilities to securely send and retrieve documents digitally with nonjudiciary users; designing and implementing a national electronic faxing solution to better utilize the existing IT infrastructure and 

eliminate the need for older local communications technologies; and centralizing data reporting which was previously isolated to each 

circuit. This request for an additional $2.6 million increases the total funding available for data security management from $0.6 

million to $3.2 million.

Application Upgrades ($800,000)

Application upgrades are essential to the Defender Services' efforts to modernize and replace aging legacy applications with current 

and secure solutions that support the mission and administrative needs of the judiciary. FDO staff often need to obtain signatures from 

remote parties such as expert witnesses, clients, and vendors. Moving to an electronic process will save time in having to fax, email,
5.18

print, and scan documents back and forth. It will also provide better control over access to these documents. This request is for 

$800,000.

Opt-In

Designed to speed-up the legal processes from sentencing to execution, “Opt-In” refers to regulations promulgated by DOJ for the 

certification of states seeking special expedited procedures that fast-track and significantly curtail federal habeas review of stateimposed death sentences. 

On April 14, 2020, former U.S. Attorney General Barr certified that the state of Arizona meets the requirements for Opt-In status, and 

since then the judiciary has worked with the Arizona FDO to meet critical resource needs to handle the expedited litigation and 

increased workload in Opt-In cases. The Arizona CHU projects that, in future fiscal years, new cases will be impacted by Opt-In and 

subject to its fast-track procedures, and that the increased workload generated by Opt-In will require an increase in additional 

temporary positions from 16 in FY 2022 to 18 in FY 2023. These temporary positions will be provided using existing funding and 

staffing flexibilities, as well as by utilizing the FDO staffing reserve assumed to be funded in FY 2022. 

Diversity Fellowship Program 

In September 2020, the Judicial Conference approved two positions for the Defender Services Capital Diversity Fellowship and 12 

positions for the establishment of a pilot Defender Services Non-Capital Diversity Fellowship Program to begin in FY 2022. 

Combined, the Defender Services Fellowship Program (Fellowship Program) will seek to enhance the quality of representation 

provided under the CJA by increasing the diversity of attorneys who are qualified to join FDOs, CJA panels, or federal capital trial 

teams. The Fellowship Program will establish a national legal training program that targets a diverse pool of law school graduates 

interested in federal criminal defense practice. The intent is to increase participation by attorneys from groups traditionally 

underrepresented in the legal profession, enhancing the Defender Services program’s ability to provide high-quality, effective 

representation. 

Scheduled to begin in FY 2022, the Fellowship Program will place 14 fellows in FDOs for two-year terms. Twelve fellows will focus 

on non-capital cases and two fellows will focus on federal capital trial practice. The Fellowship Program complies with all applicable 
5.19

equal employment opportunity laws, and eligibility to participate and selection are without regard to race, color, religion, age, gender, 

national origin, political affiliation, disability, sexual orientation, marital or family status, or other protected status. 

Other Critical Positions 

National Positions:

This FY 2023 request includes eight national positions for the NLST and one national position in NITOAD to support information 

technology needs.

The NLST request of eight additional positions (from 7 to 15) would provide seven paralegals and one computer systems 

administrator. The NLST educates and trains CJA practitioners on e-discovery review strategies, practices, and litigation support 

technology, and provides consultations and limited direct assistance with cases. The NLST staff manage national litigation support 

software and services contracts; and are directly involved with ongoing outreach with the DOJ regarding their national e-discovery 

production practices.

With these eight additional positions, NLST would have enough staff to have someone assigned to each of the 12 circuits, consistent 

with Judicial Conference policy that there be national litigation support positions “at the circuit level”. Without these positions, the 

current staff is limited in the amount of training, direct assistance, and case support they can provide. Additional litigation support 

personnel will increase training opportunities and resources for CJA panel attorneys and FDOs to use litigation support technology 

more effectively. 

Based on the national Defender Services information technology staffing formula, the FY 2023 request includes one additional 

national position (from 27 to 28) for the NITOAD staff. The information technology position will ensure Defender Services 

information technology systems are mission capable and functioning at judiciary standards. Further, the position will aid in 

centralizing Defender Services cybersecurity protections and expanding its managed security operations center (MSOC) capability.

(See page 5.28 for more details.)

Reimbursable Positions for the Defender Services Office:

The FY 2023 request includes a total of eight additional reimbursable positions. These positions, which will be part of the AO’s DSO, 

would be funded from the Defender Services appropriation, which will reimburse the AO account for all associated expenses. These 
5.20

positions would support data management, financial analysis, legal and policy support, program operations, training, and 

implementation of Judicial Conference-approved CJA-related policies. (See page 5.28 for more details.)

Update on CJA Review Study

In April 2015, Chief Justice John G. Roberts, Jr., established the Ad Hoc Committee to Review the Criminal Justice Act (CJA 

Committee) to conduct a comprehensive and impartial review, consistent with Judicial Conference policy, of the administration and 

operation of the CJA program. In November 2017, the CJA Committee submitted its findings and recommendations to the Judicial 

Conference. The CJA Committee recommended establishing an independent Federal Defender Commission within the judicial 

branch, but outside the oversight of the Judicial Conference, with sole authority to set policy and practices related to the provision of 

federal defense. Recognizing that the creation of an independent commission would require an act of Congress and could not be 

implemented immediately, the Committee also made 35 interim recommendations designed to give the Defender Services program 

more authority and autonomy within the current structure. The full text of the Committee’s findings and recommendations may be 

found online. See https://www.uscourts.gov/sites/default/files/2017_report_of_the_ad_hoc_committee_to_review_the_criminal

_justice_act-revised_2811.9.17.29_0.pdf

At its September 2018 and March 2019 sessions, the Judicial Conference approved 29 of the 35 interim recommendations, with some 

modifications. The interim recommendations approved by the Judicial Conference include, but are not limited to, providing additional 

training opportunities, encouraging the establishment of capital habeas units, increasing staff and funding for litigation support 

activities (NLST), and adequately funding and staffing NITOAD within the Defender Services program. In response to these 

recommendations, the judiciary began and continues to work on implementing the Judicial Conference’s interim recommendations.

With respect to the CJA Committee’s final recommendation to create an independent Federal Defender Commission, the Executive 

Committee of the Judicial Conference requested that the Defender Services Committee, with the assistance of the Federal Judicial 

Center, assess the judiciary’s implementation of the adopted interim recommendations and the degree to which those actions have 

addressed concerns identified by the CJA Committee’s report. Such an assessment will provide useful information for any study of 

final recommendations and will help identify areas in which the judiciary can promote further implementation of the interim 

recommendations. The FJC team has a publicly available website that includes more information about the study. It is available 

online at: https://www.fjc.gov/content/348307/cardone-recommendation-study-overview. The study is expected to be completed in 

2023. 
5.21

COST CONTAINMENT INITIATIVES

The judiciary has implemented various cost-containment initiatives across the Defender Services program to reduce costs, where 

appropriate, without compromising its constitutional mandate. Funding decisions are made with a keen awareness of the budget 

challenges facing the nation and the need to continue cost-containment measures in every aspect of the Defender Services program. 

Key cost-containment initiatives include, but are not limited to: 

(1) promoting the use of case budgeting to control expenditures in capital and other high-cost CJA panel attorney representations; 

(2) identifying more cost-effective means of handling increasingly large and complex discovery in CJA representations;

(3) coordinating with respect to remote detention of pretrial detainees; and

(4) promoting cost-effective use of paralegals.

Case Budgeting of CJA Panel Attorney Representations 

Defender Services funding continues to support eleven circuit case-budgeting attorney positions. These attorneys are assigned to 

federal judicial circuits across the country and work to identify cost drivers, monitor case expenditures, assist the courts and CJA panel 

attorneys with individual case budgeting and voucher review, and, consistent with the Defender Services program’s goals, promote 

representation consistent with the best practices of the legal profession. 

Discovery Costs 

Each year, the data associated with individual CJA representations expands in size and complexity. There are a number of critical 

issues defense counsel must address to adequately manage and review e-discovery, including the large volume of information, the 

variety of sources from a multitude of digital devices and locations, proprietary formats, hidden information such as metadata and 

embedded data, and software and hardware limitations.

Federal defenders and panel attorneys require litigation resources, including national staff, to meet the challenge presented by DOJ’s 

e-discovery and litigation support capabilities. Even in “simple,” single defendant prosecutions, discovery can include electronically

stored information (ESI, or e-discovery) extracted from client computers and mobile devices. Law enforcement officers review social 

media sites, like Facebook, Instagram, and Twitter, to capture possible incriminating materials. Video discovery is common and may 
5.22

include months of pole-camera recordings, business security videos, and hours of concealed camera footage. Additional discovery 

may include data from cell phone wiretaps, body wires, and GPS tracking devices. 

To illustrate the volume and complexity of information, in a recent multi-defendant racketeering conspiracy case, DOJ provided 

“rolling” discovery (7 productions) totaling over 1.5 terabytes of discovery, which included investigative reports, search warrant 

pleadings, 122,000 audio and text message wiretap interceptions, Instagram social media data for 23 accounts that included thousands 

of private direct message communications, photographs, audio recordings, and video files. 

Three major initiatives are in place to address this issue: 

(1) The DOJ/AO Joint Working Group on Electronic Technology in the Criminal Justice System (JETWG) addresses

various issues related to e-discovery and discovery production between the prosecution and the attorneys for defendants

charged in federal criminal cases and will meet in 2022 and 2023. The working group produced national guidance

designed to facilitate a more predictable, cost-effective, and efficient management of electronic discovery, and a

reduction in the number of disputes relating to ESI, by encouraging early discussion of electronic discovery issues

through “meet and confers” between the prosecution and defense; the exchange of data in standard or reasonably

useable formats; and resolution of disputes without the necessity of court involvement, where possible.

(2) Contracts with five national coordinating discovery attorneys are in place to advise panel attorneys and defender

organizations on cost-effective ways to manage large volumes of documents in the most complex cases to increase the

quality of representation. As of November 2021, these five attorneys have been appointed by federal courts to assist

CJA counsel in over 120 active cases in over 48 districts, and because nearly all the cases have multiple defendants,

these five attorneys have been able to provide services to over 1,200 panel attorneys and assistant federal defenders

nationally.

(3) The Defender Services program has procured national licenses for software applications and tools to allow for the more

efficient capture, organization, analysis, review, and management of case-related electronic data by CJA panel

attorneys and FDO staff, thereby generally avoiding the higher cost alternative of purchasing software for multiple

individual cases year after year.
5.23

Remote Detention of Pretrial Detainees

There has been recent re-engagement with DOJ on the issue of remote detention of pretrial detainees. In addition to raising 

fundamental concerns about the quality of representation provided under the CJA, remote detention results in increased costs for the 

Defender Services program, which must pay for CJA counsel to travel long distances to meet with clients.

This issue had been the subject of inter-branch coordination starting in 2008, and resurfaced in 2021 following Executive Order 

14006, issued on January 26, 2021, ordering DOJ not to renew contracts with privately-owned criminal detention facilities. In those 

districts where there are no suitable local public facilities to house pretrial detainees, CJA clients are being relocated to remote 

facilities, often in different states and, sometimes, different time zones. Judicial-Executive branch meetings to resolve this problem 

are ongoing.

Cost-Effective Use of Paralegals

The Committee has long-supported CJA panel attorneys’ use of paralegals, billed at lower rates than appointed counsel, to promote 

cost-effective and high-quality representation. In 2021, in response to CJA panel attorneys’ reported difficulties in finding qualified 

service providers willing to do CJA work, a new website was launched to help CJA panel attorneys around the country locate 

paralegals who could provide services in CJA cases. The NLST will be providing targeted training to these paralegals to improve 

their ability to assist CJA panel attorneys on cases with large volumes of electronic discovery.
5.24

JUSTIFICATION OF CHANGES

The FY 2023 request for the Defender Services account is 

$1,461.7 million, an increase of $118.4 million, or 8.8 percent,

over the assumed FY 2022 appropriations level of $1,343.3

million. 

The request will fund adjustments to base and staffing for the 

FDO program to support 98 percent of the staffing formula 

requirements (caseload adjusted), national positions, McGirt

positions, and AO reimbursable staff. This additional staffing 

allows the judiciary to support workload demands and

implement CJA-related policies approved by the Judicial 

Conference. 

This request also funds information technology requirements, 

including cybersecurity and IT infrastructure modernization for 

the Defender Services program.

ADJUSTMENTS TO BASE TO MAINTAIN CURRENT 

SERVICES

A. PERSONNEL RELATED

Pay and Benefit Adjustments

1. Proposed 2023 pay adjustment

a. Federal pay adjustment

Requested Increase: $20,252,000

The judiciary is assuming federal pay rates will increase by 4.6

percent, of which 4.1 percent is for an across-the-board 

increase and 0.5 percent is for a locality increase, in January 

2023. The requested increase provides for the cost of nine 

months of the anticipated pay raise in FY 2023, from January 

2023 to September 2023. (If the pay adjustment included in 

the President’s FY 2023 budget request is different from this 

4.6 percent guidance, the judiciary will revise this line item in 

its FY 2023 budget re-estimate.)

b. Panel attorney capital rate adjustment

Requested Increase: $863,000

The requested funding would increase the capital panel 

attorney hourly rate by an assumed employment cost index 

(ECI) increase of 4.1 percent. (Panel attorneys do not receive 

locality pay.) This would increase the hourly rate from $202 

per hour to an estimated $210 per hour, effective January 1, 
5.25

2023. There is a time delay between when the rate increase is 

implemented and when vouchers are submitted with the higher 

rate. Therefore, the requested increase provides for the cost of 

six months of the rate increase in FY 2023. (If the ECI pay 

adjustment included in the President’s FY 2023 budget request 

is different from this 4.1 percent guidance, the judiciary will 

revise this line item in its FY 2023 budget re-estimate.)

c. Panel attorney non-capital rate adjustment

Requested Increase: $1,702,000 

The requested funding would increase the non-capital panel 

attorney hourly rate by an assumed ECI increase of 4.1 percent. 

(Panel attorneys do not receive locality pay adjustments.) This 

would increase the hourly rate from $158 per hour to an 

estimated $164 per hour, effective January 1, 2023. There is a 

time delay between when the rate increase is implemented and 

when vouchers are submitted with the higher rate. Therefore, 

the requested increase provides for the cost of three months of 

the adjustment in FY 2023. (If the ECI pay adjustment 

included in the President’s FY 2023 budget request is different 

from this 4.1 percent guidance, the judiciary will revise this 

line item in its FY 2023 budget re-estimate.) 

2. Annualization of January 2022 pay adjustments

a. Federal pay adjustment

Requested Increase: $3,774,000

The requested increase provides for the annualized costs of the 

2022 pay adjustment associated with ECI and locality pay. As 

a result of the ECI, federal pay rates increased by an average of 

2.7 percent, effective as of January 2022. The requested 

increase provides for the cost of three months (from October 

2022 to December 2022) of the 2022 pay increase in FY 2023. 

b. Panel attorney capital rate adjustment

Requested Increase: $532,000

The requested funding annualizes the FY 2022 panel attorney 

capital ECI rate increase from $197 to $202 per hour. An

increase to the capital hourly rate impacts six months of costs 

in FY 2022. The requested increase annualizes this rate 

increase for the first six months of FY 2023. 

c. Panel attorney non-capital rate adjustment

Requested Increase: $6,307,000

The requested increase annualizes the FY 2022 panel attorney 

non-capital ECI rate increase from $155 to $158 per hour. An 

increase to the non-capital hourly rate impacts three months of 

costs in FY 2022. The requested increase annualizes this rate 

increase for the first nine months of FY 2023. 
5.26

3. Promotions and within-grade increases

Requested Increase: $4,193,000

The requested increase provides for promotions and withingrade increases for personnel. The FDO salary plans provide 

for periodic within-grade increases for staff who receive at 

least a satisfactory performance rating.

4. Benefits increases

a. Health benefits

Requested Increase: $1,367,000

Based on information from the Office of Personnel 

Management, health benefit premium contributions are 

projected to increase by an average of 2.4 percent both in

January 2022 and January 2023. The requested increase 

annualizes the 2022 premium increase and includes a ninemonth provision for the increase anticipated for FY 2023.

b. FICA adjustment

Requested Increase: $400,000

Based on information from the Social Security Administration, 

employer contributions to the Old Age, Survivor, and 

Disability Insurance (OASDI) portion of the FICA tax will 

increase in 2022. The salary cap for OASDI increased from 

$142,800 to $147,000 in January 2022. The requested amount 

is needed to pay the agency’s contribution in FY 2023.

5. One less compensable day

Requested Decrease: -$2,245,000

There is one less compensable day in FY 2023 than in FY 2022. 

The requested decrease adjusts for personnel compensation and 

benefits associated with one fewer compensable day.

B. OTHER ADJUSTMENTS

General Inflationary Adjustments

6. Inflationary increases for contracts, services, 

supplies, and equipment

Requested Increase: $6,782,000

Consistent with guidance from the Office of Management and 

Budget, this request of $6,782,000 is required to fund 

inflationary increases of 2.0 percent for operating expenses 

such as travel, communications, printing, contractual services, 

supplies and materials, and furniture and equipment. 

7. Inflationary increase in GSA space rental costs

Requested Increase: $1,293,000

The request represents a 2.0 percent inflationary increase and 

adjustments in the cost of GSA space rental charges for space 

for FY 2023.
5.27

Workload and Financing Adjustments

8. Change in projected panel attorney workload 

Requested Decrease: -$19,518,000

Prior to the COVID-19 pandemic, panel attorney caseload and 

payments showed significant increases. However, the onset of 

the COVID-19 pandemic resulted in a large reduction in panel 

attorney vouchers and representations, and the recovery to prepandemic levels in panel attorney caseload and payments has 

been slower than expected. Therefore, to adjust for these 

decreases, a base adjustment of $19.5 million is requested. 

Even with this $19.5 million base reduction, there are adequate 

funds in the FY 2023 Defender Services request to meet 

projected panel attorney payment and representation 

requirements. As the projected caseload and payment trends 

change, the judiciary will advise the appropriations 

subcommittee staff of any updates to this estimate in the FY 

2023 budget re-estimate process.

9. Annualization of FY 2022 Positions

Requested Increase: $15,091,000 FTE: 59

The requested adjustment funds the annualization for the FDO 

positions expected to be hired in FY 2022, including staffing 

formula positions [62 FPDO positions (31 FTE) and 16 CDO

positions], 32 McGirt positions (16 FTE), and 24 national 

positions (12 FTE), as well as eight reimbursable positions.

10. Increase in appropriation needed to maintain 

FY 2022 requirements due to a decrease in 

carryover funding

Requested Increase: $64,318,000

The judiciary has been able to reduce its Defender Services 

appropriation request using unobligated no-year funds carried 

forward in this account from prior fiscal years. In FY 2022, 

$94.3 million in balances from FY 2021 will be used to finance 

the FY 2022 requirements. In developing the FY 2023 request, 

the judiciary assumes $30 million will carry forward from 

FY 2022 into FY 2023 and be available to finance FY 2023 

requirements. Because the judiciary anticipates having less in 

carryforward funding available in FY 2023, it requests $64.3 

million in funding to substitute direct appropriations for base 

expenses previously funded from carryforward balances. The 

judiciary will advise appropriations subcommittee staff of any 

changes to this estimate throughout FY 2022.

C. PROGRAM INCREASES/DECREASES

11. Positions for projected workload

a. FDO staffing formula positions

Requested Decrease: -$2,431,000 FTE: -9

The requested decrease is due to a change in projected FDO

caseload and the subsequent calculation of the FDO staffing 

formulas. The formulas use multi-year caseload averages and 

several other inputs, so the change in formula results from FY 
5.28

2022 to FY 2023 does not correlate directly with the projected 

change in caseload across just those two years. This request 

would provide FDOs with funds to support 98 percent of the 

staff projected to be required under the Judicial Conferenceapproved staffing formulas in FY 2023. This request is for 22 

fewer FDO formula positions (18 for FPDOs and 4 for CDOs) 

for six months. More details on FDO workload are provided 

on pages 5.10-5.12. 

b. National positions

Requested Increase: $995,000 FTE: 5 

The requested increase supports nine new national positions 

(5 FTE), of which one position (1 FTE) is related to 

information technology (IT) and eight positions (4 FTE) are 

related to the National Litigation Support Team (NLST). 

Of the requested increase, $110,000 is for one IT position. FY 

2022 was the first year of implementation of the new Defender 

Services IT staffing formula. Its major workload driver is the 

total number of FDO FTE. The IT position will help to address 

cybersecurity and other IT requirements by ensuring defender 

IT systems are mission-capable at or above judiciary standards 

while also avoiding unnecessary duplication of efforts. 

Of the requested increase, $876,000 is for eight NLST 

positions, including seven paralegals and one computer 

systems administrator. With these eight additional positions, 

NLST would have enough staff to have regionally assigned 

staff covering each of the 12 circuits. Without these positions, 

the current personnel are limited in the amount of training, 

direct assistance, and case support they can provide. 

c. McGirt v. Oklahoma positions

Requested Increase: $4,862,000 FTE: 22 

The requested increase supports 44 positions (22 FTE) to 

address the increase in caseload from the decision in McGirt v. 

Oklahoma, 591 U.S. __ (2020). See pages 5.14-5.16 for more 

details. 

12. Reimbursable positions

Requested Increase: $669,000 

The requested increase supports eight additional positions at 

the AO’s DSO funded by the Defender Services appropriation. 

This will support higher workload demands associated with 

data management, financial analysis, legal and policy support, 

program operations, training, and the implementation of CJArelated policies approved by the Judicial Conference. 

13. Information technology, cybersecurity and IT

modernization requirements

Requested Increase: $9,167,000 

The requested increase will support three IT initiatives to 

expand capacity and upgrade licenses for existing systems 

($1.1 million) as well as cybersecurity enhancements and IT 

modernization initiatives ($8.0 million). 
5.29

The three IT initiatives are:

(1) Online Document Review Platform ($500,000);

(2) Cloud Content Repositories and File Sharing Services

($450,000); and

(3) National Log and Event Management Software

($175,000).

The National Litigation Support Team (NLST) oversees a 

national contract for an online document review platform used 

by FDOs and panel attorneys to organize, review, and analyze 

e-discovery. The platform, which is designed for large,

document-intensive litigation, assists criminal defense teams in

managing large volumes of electronically stored information

(ESI) in various formats. Because of the continued growth in

e-discovery, both in the number of cases and the size of

discovery, the need for this type of tool has increased. The

requested $500,000 would increase the total funding available

for this platform from $2.0 million to $2.5 million.

Defense teams are increasingly using cloud content repositories 

and file sharing services. These tools, also managed by the 

NLST, are particularly critical for hybrid FDO/panel attorney 

teams, as they allow the teams to collaborate even when some 

team members lack access to the judiciary network. All files 

are encrypted in transit and in storage, thus ensuring the 

security of discovery and case materials. This request of 

$450,000 would increase the funding available for these 

services to approximately $1.0 million. 

With the recent widespread government and private sector data 

breaches, cybersecurity has continued to be a critical priority. 

Defender Services has initiated the use of national log and 

event management software to ensure the safety of traffic on its 

virtual private network (VPN). As more traffic moves through 

the VPN, there is a corresponding increase in the funding 

necessary to continue to ensure the soundness of the IT security 

posture of the FDOs. This request of $175,000 would increase 

the funding available for this tool from approximately $1.5 

million to $1.7 million. 

The cybersecurity and IT modernization initiatives are: 

1. Data Center Migration ($1,000,000)

2. Cybersecurity Support ($750,000)

3. DSO Networks, Governance, and Services

Modernization ($2,907,000)

4. Data Security Management and Improvement

($2,585,000)

5. Application Upgrades ($800,000)

The cybersecurity and IT modernization requested increase of 

$8.0 million will support critical IT infrastructure requirements 

in the following areas: the relocation of the Defender Services 

portion of one of the judiciary’s data centers; cybersecurity 

support to assist with designing and implementing state of the 

art security mechanisms to combat cyberattacks; DSO 

networks, governance, and services modernization; data 

security management and improvements; application upgrades; 

and recurring costs of proposed FY 2022 infrastructure 

purchases. These requirements were included in the judiciary’s 
5.30

July 2021 infrastructure request to Congress for consideration 

as part of the broader government-wide infrastructure 

proposals being drafted at that time. Because no action was 

taken on the judiciary’s infrastructure proposal, key elements 

of that request are now being transitioned into the annual 

appropriations request to ensure that critical needs can be 

addressed. More details on Infrastructure Requirements are 

provided on pages 5.16-5.18.

D. FINANCING THE FISCAL YEAR 2023 REQUEST

14. Anticipated carryforward from FY 2022 and prior 

years into FY 2023

Estimated funds available: $30,000,000

The judiciary projects $30 million will be available through 

anticipated carryforward from FY 2022 and prior years into

FY 2023 to offset the FY 2023 appropriation request for the 

Defender Services program. The judiciary will advise the 

appropriations subcommittee staff of any changes to this 

estimate throughout FY 2022.