COURTS OF APPEALS, DISTRICT COURTS, AND OTHER JUDICIAL SERVICES

Defender Services

SUMMARY STATEMENT OF ACCOUNT REQUIREMENTS

Fiscal Year 2021 Enacted Appropriation 1,316,240,000

Fiscal Year 2022 Appropriation Request 1,409,591,000

 Requested Increase from Fiscal Year 2021 Enacted Appropriation 93,351,000

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, [$1,316,240,000]$1,409,591,000 , to remain available until expended.

(P.L. 116-260 - Financial Services and General Government Appropriations Act, 2021)

 5.1
Fiscal Year 2022 Resource Requirements:

Page FTE Amount

 3,194 1,337,613

 - (370)

1,337,243

 - (21,003)

 3,194 1,316,240

Adjustments to Base to Maintain Current Services:

A. PERSONNEL RELATED 

Pay and Benefit Adjustments

 1. Proposed January 2022 pay adjustments

5.24 - 3,986

5.25 - 246

5.25 - 291

5.25 2. Annualization of January 2021 pay adjustments

5.25 - 1,329

5.25 - 215

5.26 - 5,992

5.26 - 3,986

5.26 4. Benefits increases

 - 1,543

 - 492

 - 5,408

B. Other Adjustments

General Inflationary Adjustments

5.27 - 5,351

5.27 - 2,450

5.27 - 9,910

5.27 102 25,788

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

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

 c. Panel attorney non-capital rate adjustment (from $152 per hour to $155 per hour) ................................................................

 b. Panel attorney capital rate adjustment (from $195 per hour to $197 per hour) ......................................................................

 7. Change in projected panel attorney workload .............................................................................................................................

 c. FERS adjustment ..................................................................................................................................................................

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

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

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

Workload and Financing Adjustments

 8. Annualization of FY 2021 positions ...........................................................................................................................................

SUMMARY OF REQUEST

DEFENDER SERVICES

FISCAL YEAR 2022

(Dollar amounts in thousands)

Fiscal Year 2021 Enacted Appropriation ........................................................................................................................................

 a. Federal pay adjustment (1% for three months) .......................................................................................................................

Fiscal Year 2021 Obligations Excluding Encumbered Carryforward ...........................................................................................

Fiscal Year 2021 Obligations ............................................................................................................................................................

 Less encumbered carryforward from FY 2020 into FY 2021 ............................................................................................................

 Less unencumbered available carryforward from FY 2020 into FY 2021 .........................................................................................

 a. Federal pay adjustment (1.0% for nine months) ....................................................................................................................

 b. Panel attorney capital rate adjustment (from $197 per hour to $199 per hour, effective January 1, 2022) ............................

 c. Panel attorney non-capital rate adjustment (from $155 per hour to $156 per hour, effective January 1, 2022) ......................

 5.2
Page FTE Amount

5.27 9. Increase in appropriation needed to maintain FY 2021 requirements due to a decrease 

 - 1,003

 102 67,990

 3,296 1,384,230

C. Program Increases:

5.28 10. Additional positions for projected workload

 47 12,449

 5 1,055

 16 3,376

5.29 7 1,477

5.29 - 691

5.29 28 6,013

5.29 - 300

 103 25,361

 3,399 1,409,591

 205 93,351

D. Financing the Fiscal Year 2022 Request:

 3,399 1,409,591

5.30 - 20,000

 3,399 1,429,591

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

Estimated Obligations, Fiscal Year 2022 .........................................................................................................................................

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

Total Fiscal Year 2022 Appropriation Required ............................................................................................................................

Total Appropriation Increase, Fiscal Year 2021 to Fiscal Year 2022 ............................................................................................

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

 15. Anticipated carryforward from FY 2021 and prior years into FY 2022 ....................................................................................

 14. Establishment of new federal defender organization .................................................................................................................

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

 13. FDO staffing reserve ................................................................................................................................................................

 11. Diversity Fellowship Program positions ...................................................................................................................................

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

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

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

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

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

 5.3
FY 2020 FY 2021 FY 2022

Activity Actual Assumed Request

CJA Representation & Related Expenses Obligations 1,252,555 1,321,922 1,412,269

Program Administration Obligations 9,553 15,691 17,322

Direct Obligations 1,262,108 1,337,613 1,429,591

Unencumbered Unobligated Balance, Start of Year (30,100) (21,003) (20,000)

Encumbered Unobligated Balance, Start of Year (2,800) (370)

Total Unobligated Balance, Start of Year: (32,900) (21,373) (20,000)

Deposits and Other Adjustments:

Prior Year Recoveries (12,838) (10,000)

Anticipated Financial Plan Savings (10,000)

Transfers from CAFC and FJC (2,147)

Unobligated Balance, End of Year: 21,373 20,000

Less Offsetting Collections (22)

Appropriation 1,235,574 1,316,240 1,409,591

Direct Appropriations 1,234,574

CARES Act Supplemental Appropriation 1,000

COURTS OF APPEALS, DISTRICT COURTS, AND OTHER JUDICIAL SERVICES

DEFENDER SERVICES

Obligations by Activity ($000)

 5.4
FY 2020 FY 2021 FY 2022

Actual Assumed Request

11.1 Full-time permanent 363,453 385,205 418,726

11.3 Other than full-time permanent 8,969 9,506 10,333

11.5 Other personnel compensation 776 822 894

11.9 Personnel compensation subtotal 373,198 395,533 429,953

12.1 Personnel benefits 131,616 142,064 157,909

13.0 Benefits for former personnel 584 628 668

21.0 Travel 7,112 15,139 15,787

22.0 Transportation of things 341 377 416

23.1 Rental payments to GSA 42,581 45,661 48,471

23.2 Rental payments to others 945 1,086 1,149

23.3 Communications, utilities, and miscellaneous charges 9,315 10,983 12,054

24.0 Printing and reproduction 63 116 123

25.1 Advisory and assistance services 441,213 452,998 472,799

25.2 Other services from non-federal sources 49,293 50,610 52,822

25.3 Other goods and services from federal sources 5,490 5,637 5,883

25.4 Operations and maintenance of facilities 7,728 7,934 8,281

25.6 Medical care 296 304 317

25.7 Operations and maintenance of equipment 1,451 1,490 1,555

26.0 Supplies and materials 1,895 1,965 2,183

31.0 Equipment 18,286 20,721 23,121

41.0 Grant payments 170,698 184,368 196,100

42.0 Insurance claims and indemnities 1

Direct Obligations 1,262,108 1,337,613 1,429,591

FY 2020 FY 2021 FY 2022

Actual Assumed Request

CJA Representation & Related Expenses Obligations1/ 3,056 3,183 3,388

Program Administration Obligations 10 11 11

Total FTE 3,066 3,194 3,399

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 2020 FY 2021 FY 2022

Actual Assumed Request

Direct obligations 1,262,108 1,337,613 1,429,591

Obligated balance, start of year 71,080 74,965 82,473

Recoveries of prior year unpaid obligations (9,975) (10,000) (10,000)

Change in uncollected payments 14 0 0

Obligated balance, end of year (74,965) (82,473) (51,738)

Total Outlays 1,248,262 1,320,105 1,450,326

Less Offsets (2,899) (5,000) (5,000)

Net Outlays 1,245,363 1,315,105 1,445,326

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: 

• provide timely counsel services to all eligible persons;

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

• provide cost-effective services; and 

• 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) 2022 appropriation request of $1,409.6 million will

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

The FY 2022 request will support:

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

• additional national positions for information technology (IT) and the Capital Resource Counsel (CRC) Project;

• additional national positions for a new Diversity Fellowship Program to increase the diversity of attorneys qualified to provide 

counsel in federal capital trials and non-capital CJA representations;

• additional funding for the staffing reserve to address caseload surges, such as Opt-In requirements;

• additional funding for staffing to support an increase in caseload as a result of the decision in McGirt v. Oklahoma, 591 U.S. 

__ (2020);

• start-up costs for a new FDO expected in a district based on recent inquiries from eligible districts (location to be determined

and subject to congressional notification of reprograming to create a new office) that meets the caseload criteria of having at 

least 200 appointments per year; and

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

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 81 FDOs authorized to serve 91 of the 94 judicial districts. (Georgia-Southern
5.9

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 

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 utilized primarily 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 do not have an FDO.
5.10

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. 

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 serious federal crimes.

To determine FDO staffing requirements1 in this FY 2022 budget request, a five-year statistical average is used that includes actual 

data from 2017 – 2020 and projected data for 2021. As shown in the following chart, FDO weighted representations2 increased 

significantly between statistical years3 2016 and 2019 and remained at a high level in 2020. During this time period, there were 

notable increases in capital prosecution, assault, racketeering, immigration, and sex offense cases. Actual 2020 weighted 

representations were approximately 17 percent above the 2016 level. Although the caseload is projected to decline in 2021 as a result 

of the COVID-19 pandemic, the caseload is projected to rebound in 2022. For a discussion of the COVID-19 pandemic's impact on 

workload, see COVID-19 - Impact on FDOs and CJA Panel Attorneys on page 5.14.

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 1st of one year and ending on March 31st of the subsequent year.
5.11

FDO Weighted Representations

Workload Factor 2016

Actual

2017

Actual

2018

Actual

2019

Actual

2020

Actual

2021

Projected

2022

Projected

FDO Weighted Representations –

Non-capital 128,767 131,024 142,750 152,496 151,025 121,000 141,200

FDO Weighted Representations –

Capital Prosecution*/** 1,104 2,752 2,101 1,174 1,019 1,700 1,700

Total FDO Weighted Representations 129,871 133,776 144,851 153,670 152,044 122,700 142,900

Year-to-Year Change 3.0% 8.3% 6.1% -1.1% -19.3% 16.5%

*The AO's Judiciary Data and Analysis Office (JDAO) will be including weighted capital prosecution representations to the FDO weighted representations 

going forward. To show accurate comparisons of prior statistical year (SY) data to the SY 2021 projections, weighted capital prosecution representations are 

added to the non-capital FDO weighted representations to show total FDO weighted representations.

**Actual non-weighted capital prosecutions from 2016 – 2020 range from 20 to 53 per year.

Though the overall change in weighted representations between 2019 and 2020 was small, some notable differences are shown in the 

chart below:

Major Types of FDO Weighted Representations*

Case Group 2019 2020

Percent 

Change

Drug Representations 17,346 18,381 6.0%

Immigration – Illegal Re-Entry 19,510 21,946 12.5%

Weapons Representations 18,780 16,625 -11.5%

Criminal-Other 48,792 51,329 5.2%

*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 heightened immigration enforcement, the opioid crisis, and violent crimes 
5.12

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. 

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, especially during the COVID-19 pandemic. The recent Supreme Court decision in McGirt v. 

Oklahoma, 591 U.S. __ (2020), which changed the jurisdiction from state to federal court over numerous types of felony cases 

involving Indian persons or property in Oklahoma, is leading to an increase in representations not fully anticipated in current workload 

projections. In addition, changes in state law, such as California’s Proposition 66 that speeds up state court review of capital 

judgments, also impact the Defender Services program and increase resource needs.

Department of Justice (DOJ) policy also drives caseload for the CJA. For example, DOJ has increased the number of capital 

prosecutions in recent years, and federal executions resumed in 2020 after a 17-year hiatus. In March 2018, there were approximately 

267 individuals with death-eligible indictments facing potential federal capital prosecution. Two years later, in September 2020, there 

were approximately 352 individuals facing capital-eligible charges, an increase of 32 percent.

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

pandemic. However, panel attorney representations are projected to rebound in SY 2022. To determine panel attorney requirements 

in this FY 2022 budget request, SY 2022 projected workload was used (92,600 representations4

).

Panel Attorney Representations*

Workload Factor

2016

Actual

2017

Actual

2018

Actual

2019

Actual

2020

Actual

2021

Projected

2022

Projected

Panel Attorney Representations 80,043 79,352 77,130 89,079 93,189 75,100 92,600

Year-to-Year Change -0.9% -2.8% 15.5% 4.6% -19.4% 23.3%

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

4 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

A significant increase in panel attorney payments occurred from FY 2018 to FY 2020 (14.3 percent, from $396.2 million to $452.9 

million) as shown in the following chart. The increase was mainly due to more representations (20.8 percent, from 77,130 to 93,189)

and hourly rate increases, which went from $140 to $152 for non-capital representations, and from $188 to $195 for capital

representations. Of the $56.7 million increase, $35.5 million was for drug representations. Other non-capital categories showing 

significant FY 2020 payment increases from FY 2018 include immigration and weapons. In addition, capital prosecution panel 

attorney payments increased by $18.6 million (65.0 percent) from FY 2018 to FY 2020. 

Panel Attorney Payments

($ millions)

Requirements for panel attorneys are directly attributable to expected FY 2022 caseload and inflationary rate increases, resulting 

in an increase of $9.9 million for projected panel payments in FY 2022 (See page 5.27 for more details). Other issues that 

impact the FY 2022 budget request are detailed in the Significant Issues for Fiscal Year 2022 section (See pages 5.14 – 5.19).

Offense Type

FY 

2018

FY 

2019 

FY 

2020 

Dollar 

Change 

from 

FY 2018 

to 

FY 2019 

% 

Change 

from 

FY 

2018 

to 

FY 

2019

Dollar 

Change 

from 

FY 

2019 to 

FY 

2020 

% 

Change 

from 

FY 

2019 to 

FY 

2020

Dollar 

Change 

from 

FY 

2018 to 

FY 

2020 

% 

Change 

from 

FY 

2018 

to 

FY 

2020

Capital Prosecution $28.6 $40.6 $47.2 $12.0 42.0% $6.6 16.3% $18.6 65.0%

Drugs $122.0 $136.5 $157.5 $14.5 11.9% $21.0 15.4% $35.5 29.1%

Immigration $19.8 $24.3 $29.7 $4.5 22.7% $5.4 22.2% $9.9 50.0%

Fraud $34.0 $33.1 $33.5 -$0.9 -2.6% $0.4 1.2% -$0.5 -1.5%

Weapons $28.5 $32.1 $35.9 $3.6 12.6% $3.8 11.8% $7.4 26.0%

Capital Habeas $16.2 $13.7 $16.3 -$2.5 -15.4% $2.6 19.0% $0.1 0.6%

Appeals $33.8 $30.4 $35.0 -$3.4 -10.1% $4.6 15.1% $1.2 3.6%

Criminal - Other $113.3 $100.3 $97.8 -$13.0 -11.5% -$2.5 -2.5% -$15.5 -13.7%

 Total $396.2 $411.0 $452.9 $14.8 3.7% $41.9 10.2% $56.7 14.3%
5.14

FISCAL YEAR 2021 APPROPRIATIONS

The judiciary built the FY 2022 budget request for the Defender Services appropriation on the FY 2021 enacted appropriation, which 

is $1,316.2 million. This amount funds current services in FY 2021 and allows for hiring an additional 250 FDO positions, including 

206 FDO staffing formula positions, 13 CJA panel management positions, 26 positions related to the additional workload associated 

with the Supreme Court’s McGirt decision, and five national positions. In addition, the FY 2021 appropriation funds the $1 aboveCOLA increase to the panel attorney non-capital rate to reach the statutory maximum, eight Defender Services Office reimbursable 

positions, and critical information technology requirements. 

For bill language, the judiciary used the language from P.L. 116-260, Financial Services and General Government Appropriations Act, 

2021. 

SIGNIFICANT ISSUES FOR FISCAL YEAR 2022

COVID-19 – Impact on FDOs and CJA Panel Attorneys

In the spring of 2020, the COVID-19 pandemic resulted in a 63 percent reduction of appointments for FDOs, from a monthly average 

of 7,259 appointments over the first six months of FY 2020, to 2,647 appointments in April 2020. Appointments gradually increased 

each succeeding month from that low. By the summer of 2020, representations rebounded in many districts, erasing most of the 

decline experienced earlier in the year. There were 5,636 appointments in September 2020, which is 77% of the monthly average over 

the first six months of the fiscal year. The judiciary expects that caseload will continue to increase as the pandemic situation 

improves. Most FDOs were already operating at historically high caseload levels in the two years before the pandemic. Therefore, 

based on the FDO work measurement formula, which utilizes five years of workload, many FDOs’ staffing requirements will increase 

in FY 2022 despite the pandemic-induced reduction in caseload.

Similarly, panel attorney appointments dropped by approximately 60 percent during the first few months of the pandemic but have 

steadily increased more recently. Despite this decline in appointments, panel attorney payments in March and April 2020 spiked to 

approximately $50 million per month (compared to the FY 2020 financial plan average monthly amount of $36.0 million). This 

increase at the beginning of the pandemic was likely a function of accelerated voucher submissions as attorneys had more time to 

work through their billing backlog. Panel attorneys are paid upon approval of a payment voucher (generally after the completion of a 

case). Typically, there is a delay of several months from appointment to payment. Therefore, the slowdown in appointments 
5.15

beginning in March 2020 resulted in lower than projected payments beginning in June 2020. Given the projected change in panel 

representations from 75,100 in SY 2021 to 92,600 in SY 2022, spending is expected to increase consistent with the increase in 

caseload. 

Projected Impact of the “McGirt v. Oklahoma” Decision

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). 

On July 9, 2020, the Supreme Court held in McGirt v. Oklahoma that land in northeastern Oklahoma reserved for the Creek Nation in 

the 1830s remains “Indian country” for purposes of the MCA because Congress never expressly disestablished the reservation. As a 

result of the decision, the federal government, rather than the state, must prosecute major crimes involving Indians, which include 

violent crimes such as murder, rape, sexual assault, and robbery. McGirt v. Oklahoma, 591 U.S. __ (2020). The precedent set in 

McGirt is expected to be applied to cases involving four other Oklahoma-based tribes and, as such, will affect all three federal judicial 

districts in the state.

The impact of the McGirt decision on FDOs and CJA panel attorneys in Oklahoma is substantial, and the anticipated increased federal 

court workload is currently expected to last indefinitely. The Department of Justice estimates that there are thousands of state 

prisoners whose cases will need to be reviewed and who may be prosecuted anew in federal court because the state’s jurisdiction to 

prosecute the original offense may be invalidated under McGirt. During the immediate aftermath of the decision, the U.S. Attorneys 

in Oklahoma estimated caseload increases of 300-500 percent for Creek Nation prosecutions only. Should McGirt apply to all Five 

Civilized Tribes, the U.S. Attorneys estimated a 1,300-1,500 percent increase in caseload.

The FDOs and CJA panel attorneys in Oklahoma are already starting to experience the effects of the McGirt decision. Since the 

McGirt decision, monthly caseload in Northern District of Oklahoma is up 286 percent over the past twelve-month average. Monthly

caseload in the Eastern District of Oklahoma is up 294 percent in the same timeframe. For the Eastern District of Oklahoma, the 

weighted representations in September and October of 2020 are 89 percent higher compared to the same period in 2019. The 

weighted representations for the Northern District of Oklahoma are 16 percent higher than last year. There have been more than 225 

new cases, of which four are death-eligible murder cases, just from Creek Nation cases, and four other tribes’ cases will almost

certainly follow. The federal defender for the Northern and Eastern Districts of Oklahoma has stated that due to the number of CJA 

appointments already resulting from McGirt, both the FDO and the CJA panel in those districts will soon be unable to take additional 

appointments. The Tenth Circuit has already approved the Eastern and Northern Districts of Oklahoma FDO to double their number 
5.16

of assistant federal public defenders (from 10 to 20). In the meantime, several FDOs from outside the state and panel attorneys from 

other states are accepting appointments to absorb some of the overflow caseload. Based on current projections, the caseload numbers 

will continue to rise during SY 2021 and SY 2022, and the Eastern and Northern Districts of Oklahoma FDO will have to transition 

from a small office to one of the program’s larger FDOs.

Thus, there is an immediate need to increase the availability of attorneys in the Oklahoma districts to address the increased caseload.

The Defender Services FY 2021 financial plan included 26 positions to address McGirt-related caseload. The FY 2022 request 

includes an additional 32 positions. These resources dedicated in FY 2021 and requested in FY 2022 are to address the immediate

McGirt decision currently affecting the Creek Nation.

Opt-In

Opt-In refers to expedited procedures for federal habeas corpus review of state-imposed death sentences enacted as part of the 1996 

Antiterrorism and Effective Death Penalty Act and DOJ implementing regulations. Designed to speed-up the legal processes from 

sentencing to execution, Opt-In significantly curtails federal court review of the constitutionality of state death row prisoners’ 

convictions and death sentences. Opt-In fast-tracks federal habeas review by, among other things, shortening the statute of limitations 

for prisoners to file a federal habeas corpus petition under 28 U.S.C. § 2254 from 12 months to six months, and strictly limiting 

amendments to the petition. Opt-In’s accelerated federal judicial review significantly increases workload and associated staffing and 

funding requirements for FDO capital habeas units (CHUs) and CJA panel attorneys in states affected by Opt-In. 

In order for a state to benefit from Opt-In’s accelerated procedures, the U.S. Attorney General must certify that the state meets certain 

statutory and administrative requirements, including having a mechanism for providing for state post-conviction counsel, 

compensation, and litigation expenses. Two states have applied for Opt-In certification: Arizona and Texas. On April 14, 2020, the 

Attorney General certified that the state of Arizona meets the requirements for Opt-In status and is, accordingly, entitled to utilize the 

fast-track federal habeas review procedures. While there is litigation pending in the D.C. Circuit regarding the certification decision, 

the Opt-In provisions remain in effect in Arizona. DOJ has not yet acted on Texas’s application for certification.

The Arizona CHU projects that, over the next eight fiscal years, a minimum of 44 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 approximately 43 additional temporary 

positions to staff those cases. In comparison, the current staffing formula authorizes 57.3 FTE for the Arizona CHU to handle its 

current caseload, excluding Opt-In. The judiciary’s FY 2022 budget request includes an FDO staffing reserve of $6.0 million (28.5
5.17

FTE) which, if funded, may be used to help address some of the Arizona CHU’s increased Opt-In requirements. If DOJ also certifies 

Texas, there are approximately 199 cases throughout Texas that would potentially be impacted by Opt-In. (See page 5.29 for more 

details.)

Diversity Fellowship Program 

In September 2020, the Judicial Conference approved the establishment of a Defender Services Diversity Fellowship Program. The 

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 federal defender organizations, 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 of the program 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. Expected to begin in 

FY 2022, the Fellowship Program will place 14 fellows in federal defender organizations for two-year terms. Two of the fellows will 

focus on federal capital trial practice, and 12 will focus on non-capital cases. The program complies with all applicable 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 difference. The judiciary’s 

FY 2022 budget request includes $1.5 million for the Fellowship Program. 

Non-Capital Panel Attorney Rate

The judiciary is grateful for the significant increases to the non-capital hourly rate that Congress has provided in recent years. The 

judiciary is especially thankful for the FY 2021 non-capital rate increase that allowed this rate to reach the maximum statutory level of 

$155 per hour. Obtaining the statutorily authorized non-capital hourly rate demonstrates support for the essential contributions of 

private panel attorneys to the CJA program, thereby helping to improve the availability and quality of experienced private attorneys 

willing to accept appointment in CJA cases. A meaningful public defense system, and compliance with the constitutionally and 

statutorily mandated right to the effective assistance of counsel, cannot function without qualified and experienced panel attorneys 

willing to provide representation.

Other Critical Positions 

National Positions: This FY 2022 request includes seven national positions (from 20 to 27) to support information technology needs

and three national positions for the Capital Resource Counsel Project (CRC). 
5.18

FY 2022 is the first year of implementation of a new national Defender Services information technology staffing formula that was 

approved by the Judicial Conference. The information technology positions will ensure Defender Services information technology 

systems are mission capable and functioning at judiciary standards. Further, they will aid the Defender Services program’s initiative 

to further centralize cybersecurity protections and expand its managed security operations center (MSOC) capability.

The CRC request of three additional positions (from seven to ten) would provide two resource counsel attorneys and one paralegal. 

These positions are necessary due to the substantial increase in defendants with death-eligible indictments; DOJ authorizations to seek 

the death penalty; and the greater complexity of capital litigation cases. In March 2017, there were 158 individuals with death-eligible 

indictments facing potential federal capital prosecution. By September 2020, there were approximately 352 individuals facing deatheligible charges and pending an authorization decision by the U.S. Attorney General. These additional positions would expand the 

CRC’s ability to provide cost-effective direct representation by expert capital litigators and enhance CRC’s ability to provide expert 

advice and assistance to CJA appointed counsel. (See page 5.28 for more details on national positions.)

Reimbursable Positions for the Defender Services Office: The FY 2022 request includes a total of eight additional reimbursable 

positions. These positions, which will be part of the AO’s Defender Services Office, would be funded by the Defender Services 

appropriation, and the funding would be reimbursed to the AO account. These positions would support data management, financial 

analysis, legal and policy support, program operations, training, and implementation of CJA-related policies approved by the Judicial 

Conference. (See page 5.29 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_actrevised_2811.9.17.29_0.pdf
5.19

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, and adequately funding and staffing the National Information Technology Operations and Application Development Branch 

(NITOAD) within the Defender Services program. In response to these recommendations, the judiciary immediately began 

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. 
5.20

COST CONTAINMENT INITIATIVES

The judiciary has implemented various cost-containment initiatives across the Defender Services program 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) supporting distance learning initiatives to optimize the accessibility of CJA panel attorney training opportunities; 

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

(3) improving DOJ procedures for making decisions not to seek the death penalty in death-eligible cases; and 

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

Distance Learning

The Defender Services program continues to develop and produce distance learning as part of its robust training program. Since 

October 2010, substantive criminal defense video training sessions have been made available to CJA practitioners, including CJA 

panel attorneys and defender staff, expanding the reach of the programs without the necessity of additional live training events. At 

this time, more than 62 training sessions presented at national and local programs over the last several years may be viewed by FDO 

staff and panel attorneys through the Training Division’s website, www.fd.org. Since 2013, the Training Division has also presented 

55 webinars, most of which included two live presentations. Until the onset of COVID-19, between 1,000 and 2,000 practitioners 

accessed the videos each year. In response to the pandemic, the Defender Services program increased the frequency of webinar 

presentations. By the end of FY 2020, the DSO Training Division had completed 26 live webinars, which reached approximately 

8,800 participants. Currently, each live webinar can accommodate 1,000 participants during the live event. The FY 2020 webinars 

provided quality training on a variety of criminal defense topics including the Ethics of Sentencing, Pretrial Release, and Supreme 

Court Update. 

The training made available through distance learning provides an additional resource to improve the quality of representation 

provided by CJA counsel and enables live training programs to have a greater impact nationally. For example, FDOs are using the 

webinars as part of their local panel attorney training, which increases the availability of training without incurring additional costs. 
5.21

Case Budgeting of CJA Panel Attorney Representations 

Defender Services funding supports eleven 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. The case-budgeting attorneys focus their attention on “high-cost” 

representations, defined as all capital cases and those non-capital representations where it can be anticipated that there will be more 

than 300 attorney hours or total expenditures are expected to exceed 300 times the prevailing non-capital hourly rate, rounded up to 

the nearest thousand, for an individual defendant. To address these high-cost cases, the judiciary continues to promote the nationwide 

use of case budgeting techniques to help ensure that, in all capital and other high-cost panel attorney cases, the expenses of 

representation are anticipated, substantiated, monitored, and, where appropriate, limited before they are incurred. Case-budgeting 

attorneys funded by Defender Services currently serve the following ten circuits: First, Second, Third, Fourth, Fifth, Sixth, 

Seventh/Eighth (shared position), Ninth (two positions), and Tenth. 

Improvement in DOJ Procedures for Making Decisions Not to Seek the Death Penalty in Death-Eligible Cases

The judiciary continues to urge DOJ to streamline its procedures for evaluating and making decisions not to seek the death penalty in 

cases where the government can quickly conclude that the death penalty is inappropriate. In the vast majority of death-eligible cases, 

the local U.S. Attorney does not recommend, and the U.S. Attorney General does not authorize,5 seeking the death penalty. In 

FY 2020, the U.S. Attorney General reviewed approximately 151 cases of defendants indicted with death-eligible offenses and 

decided whether or not each case would proceed as a capital case. Of these 151 cases, only five cases (3 percent of the total) were 

approved to proceed as a death penalty case. 

Until DOJ notifies counsel and the court that it does not intend to seek the death penalty for an eligible defendant, which can take 

years to determine, defense counsel must assume that the death penalty will be pursued. Pending DOJ’s decision, the judiciary is 

obligated to bear the substantial cost of the statutorily-required two capital-qualified defense counsel – currently compensated at the 

higher capital panel attorney hourly rate of $197 – who must undertake the intensive, time-consuming work required to attempt to 

persuade the government not to seek the death penalty, and prepare for a capital trial and sentencing proceeding. An early decision by 

5 For any federal death-eligible case to proceed as a death penalty case, the U.S. Attorney General must decide whether to seek the death penalty. After a case is 

approved by the Attorney General to proceed as a capital case, it is considered “authorized.”
5.22

the Attorney General not to seek the death penalty could achieve significant cost savings for the Defender Services program, DOJ, and 

the courts. 

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 electronic 

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 

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 just one recent multi-defendant bank fraud case, the government provided 

“rolling” discovery (more than 17 productions) totaling more than 131.8 gigabytes of documents including Word documents, 

spreadsheets, PowerPoint presentations, and PDF files; native email files of 4.5 gigabytes; 700 gigabytes of multimedia files 

(including wiretap recordings, jail calls, and ATM proprietary video recordings); 5.3 terabytes of forensic images from 125 digital 

devices seized by the government; and 48 terabytes of proprietary pole camera video recordings.

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. 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. 
5.23

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

cost-effective ways to manage large volumes of documents in the most complex cases to increase the quality of representation. 

As of November 2020, these five attorneys have been appointed by federal courts to assist CJA counsel in over 120 active 

cases in more than 45 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.
5.24

JUSTIFICATION OF CHANGES

The FY 2022 request for the Defender Services account is 

$1,409.6 million, an increase of $93.4 million, or 7.1 percent,

over the enacted FY 2021 appropriations level of $1,316.2

million. 

The request will fund adjustments to base and staffing 

increases to the FDO program to support 98 percent of the 

staffing formula requirements (caseload adjusted), national 

positions, McGirt positions, AO reimbursable staff, and a 

staffing reserve. 

This staffing allows the judiciary to support workload demands

and implement CJA-related policies approved by the Judicial 

Conference and provides the resources necessary to respond to 

sudden surges in workload. 

This request also funds start-up costs for a new federal 

defender organization. 

ADJUSTMENTS TO BASE TO MAINTAIN CURRENT 

SERVICES

A. PERSONNEL RELATED 

Pay and Benefit Adjustments

1. Proposed January 2022 pay adjustments

a. Federal pay adjustment

Requested Increase: $3,986,000

The judiciary is assuming federal pay rates will increase by 1.0 

percent in January 2022. The requested increase provides for 

the cost of nine months of the anticipated pay adjustment in 

FY 2022, from January 2022 to September 2022. (If the pay 

adjustment included in the President’s FY 2022 budget request 

is different from this 1.0 percent guidance, the judiciary will 

revise this line item in its FY 2022 budget re-estimate.)
5.25

b. Panel attorney capital rate adjustment

Requested Increase: $246,000

The requested funding would increase the capital panel 

attorney hourly rate by an assumed cost-of-living increase of 

1.0 percent. This would increase the hourly rate from $197 per 

hour to an estimated $199 per hour, effective January 1, 2022. 

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 2022. (If the pay 

adjustment included in the President’s FY 2022 budget request 

is different from this 1.0 percent guidance, the judiciary will 

revise this line item in its FY 2022 budget re-estimate.)

c. Panel attorney non-capital rate adjustment

Requested Increase: $291,000

The requested funding would increase the non-capital panel 

attorney hourly rate by an assumed cost-of-living increase of 

1.0 percent. This would increase the hourly rate from $155 per 

hour to an estimated $156 per hour, effective January 1, 2022. 

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 2022. (If the pay 

adjustment included in the President’s FY 2022 budget request 

is different from this 1.0 percent guidance, the judiciary will 

revise this line item in its FY 2022 budget re-estimate.) 

2. Annualization of January 2021 pay adjustments

a. Federal pay adjustment

Requested Increase: $1,329,000

The requested increase provides for the annualized costs of the

2021 pay adjustment associated with the Employment Cost 

Index (ECI). Based on the FY 2021 enacted appropriations 

bill, federal pay rates increased by 1.0 percent, effective as of

January 2021. The requested increase provides for the cost of 

three months (from October 2021 to December 2021) of the

enacted 2021 pay increase in FY 2022.

b. Panel attorney capital rate adjustment

Requested Increase: $215,000

The requested funding annualizes the enacted FY 2021 panel 

attorney capital rate cost-of-living increase from $195 to $197

per hour. The increase to the capital hourly rate is expected to

impact six months of costs in FY 2021. The requested increase 

annualizes this rate increase for the first six months of 

FY 2022. 
5.26

c. Panel attorney non-capital rate adjustment

Requested Increase: $5,992,000

The requested increase annualizes the enacted FY 2021 panel 

attorney non-capital cost-of-living rate increase from $152 to 

$154, as well as the enacted FY 2021 above inflation rate 

increase of $1 to $155 per hour. An increase to the non-capital 

hourly rate impacts three months of costs in FY 2021. The 

requested increase annualizes this for the first nine months of 

FY 2022. 

3. Promotions and within-grade increases

Requested Increase: $3,986,000

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: $1,543,000

Based on information from the Office of Personnel 

Management, agency health benefit premium contributions are 

projected to increase by an average of 3.0 percent both in

January 2021 and January 2022. The requested increase 

annualizes the 2021 premium increase and includes a ninemonth provision for an estimated 3.0 percent increase 

anticipated in FY 2022.

b. FICA adjustment

Requested Increase: $492,000

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 2021. The salary cap for OASDI increased from 

$137,700 to $142,800 in January 2021. The requested amount 

is needed to pay the agency’s contribution in FY 2022.

c. FERS adjustment

Requested Increase: $5,408,000

Consistent with guidance from the Office of Management and 

Budget, funds are requested for an increase in the agency 

contribution rate to Federal Employees Retirement System 

(FERS) plans for FY 2022. For most employees, the agency 

contribution rate will increase from 17.3 percent to 18.4

percent. Any FERS increase is in accordance with revised 

estimates of the cost of providing benefits by the Board of 

Actuaries of the Civil Service Retirement and Disability 

System. 
5.27

B. OTHER ADJUSTMENTS

General Inflationary Adjustments

5. Inflationary increases for contracts, services, 

supplies, and equipment

Requested Increase: $5,351,000

Consistent with guidance from the Office of Management and 

Budget, this requested increase is required to fund inflationary 

adjustments of 2.0 percent for operating expenses such as 

travel, communications, printing, contractual services, supplies 

and materials, and furniture and equipment. 

6. Inflationary increase in GSA space rental costs

Requested Increase: $2,450,000

The request represents a 4.0 percent increase in the cost of 

GSA space rental charges in FY 2022.

Workload and Financing Adjustments

7. Change in projected panel attorney workload 

Requested Increase: $9,910,000

The requested increase is due to a projected change in panel 

attorney caseload. Panel attorney representations are projected 

to increase from 75,100 in SY 2021 to 92,600 in SY 2022. 

Caseload is subject to variation due to prosecutorial priorities 

and case complexities. The judiciary will advise the 

appropriations subcommittee staff of any changes to this 

estimate in the FY 2022 budget re-estimate process.

8. Annualization of FY 2021 Positions

Requested Increase: $25,788,000 FTE: 102

The requested adjustment funds the annualization for the 250

FDO positions expected to be hired in FY 2021, including 206

staffing formula positions [162 FPDO positions (81 FTE) and 

44 CDO positions], 13 CJA panel management positions (ten 

positions/5 FTE for FPDOs and three positions for CDOs), 26 

McGirt positions (13 FTE) and five national positions (3 FTE);

as well as eight reimbursable positions expected to be hired in 

FY 2021.

9. Increase in appropriation needed to maintain 

FY 2021 requirements due to a decrease in 

carryover funding

Requested Increase: $1,003,000

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 2021, 

$21.0 million in balances from FY 2020 will be used to finance 

the FY 2021 requirements. In developing the FY 2022 request, 

the judiciary expects $20 million to carry forward from 

FY 2021 into FY 2022 and be available to finance FY 2022 

requirements. Because the judiciary anticipates having less in 

carryforward funding available in FY 2022, it requests 
5.28

$1,003,000 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 2021.

C. PROGRAM INCREASES

10. Additional positions for projected workload

a. FDO staffing formula positions

Requested Increase: $12,449,000 FTE: 47

The requested increase supports the continued implementation 

of the FDO staffing formulas. This increase would provide 

FDOs with funds to support 98 percent of the staff projected to 

be required under the Judicial Conference-approved staffing 

formulas in FY 2022. This request is for 118 additional FDO 

staff funded for six months (94 positions/47 FTE for FPDOs 

and 24 CDO positions). This increase in staffing is critical 

because of the workload described on pages 5.10-5.13.

b. National positions

Requested Increase: $1,055,000 FTE: 5

The requested increase supports 10 new national positions 

(5 FTE), of which seven positions (3.5 FTE) are related to 

information technology (IT), and three positions (1.5 FTE) are 

related to the Capital Resource Counsel Project.

Of the requested increase, $738,000 is for seven information 

technology positions. FY 2022 is 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 positions will address cybersecurity needs by 

establishing a security incident response team, and noncybersecurity 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, $317,000 is for three Capital 

Resource Counsel positions, including two resource counsel 

attorneys and one paralegal. The judiciary requests this 

increase in light of the substantial increase in defendants with 

death-eligible indictments (158 individuals in March 2017 

compared to 352 individuals in September 2020) and DOJ 

authorizations to seek the death penalty, as well as the greater 

complexity in capital litigation. These additional CRC staff are 

necessary to meet the challenges brought about by this increase 

in cases, expand CRC’s ability to provide cost-effective direct 

representation by expert capital litigators, and increase the 

expert advice and assistance provided to CJA appointed 

counsel. 

c. McGirt v. Oklahoma positions

Requested Increase: $3,376,000 FTE: 16

The requested increase supports 32 positions (16 FTE) to 

address the increase in caseload from the decision in McGirt v. 
5.29

Oklahoma, 591 U.S. __ (2020). See pages 5.15-16 for more 

details. 

11. Diversity Fellowship Program positions

Requested Increase: $1,477,000 FTE: 7

The requested increase supports 14 positions to establish a

Diversity Fellowship Program within FDOs. The 14 positions 

include two capital fellows and 12 non-capital fellows. See 

page 5.17 for more details.

12. Reimbursable positions

Requested Increase: $691,000 

The requested increase supports eight additional positions at 

the AO funded by the Defender Services appropriation. These 

positions will support higher workload demands associated 

with data management, financial analysis, legal and policy 

support, program operations, training, and implementation of

CJA-related policies approved by the Judicial Conference.

13. FDO staffing reserve

Requested Increase: $6,013,000 FTE: 28.5

The requested reserve will provide the Defender Services 

program with more flexibility to quickly allocate additional 

resources to FDOs in response to significant caseload 

pressures, such as substantial surges in workload due to 

changes in law and practice. Any additive FTEs allocated to 

address caseload surges would be temporary and only approved 

for one fiscal year. Any portion of the reserve that remains 

unspent at the end of a fiscal year will be carried forward into 

the next fiscal year and used to offset requirements in that 

year’s budget request. Reserve funding requested in FY 2022 

may be needed for Opt-In staffing requirements in Arizona (see 

discussion of Opt-In on pages 5.16-17).

14. Establishment of new federal defender organization

Requested Increase: $300,000 

The requested increase will support non-recurring start-up 

costs for one new organization. The requested start-up costs 

are for tenant alterations, furniture, equipment, and law books. 

The FY 2022 staffing costs are expected to be minimal and will

be paid for by using existing resources. Once established, the 

FDO staffing formula will be used to determine staffing 

requirements.

At this time, the judiciary has not identified a specific district in 

which the organization will be established. Currently, there are 

two districts without a federal defender organization that meet 

the qualifications pursuant to 18 U.S.C. § 3006A(g)(1) of

having 200 or more appointments each year – Georgia-Southern 

and Kentucky-Eastern. These two districts have both recently 

studied the possibility of, and are actively considering, 

establishing a new FDO. In addition, the Tenth Circuit has 

specifically inquired about splitting the FDO for the Northern 

District and Eastern District of Oklahoma into two separate 

FDOs. In accordance with section 608 of the Financial Services 
5.30

and General Government appropriations bill, the Judiciary will 

transmit a reprogramming notification to the Appropriations 

Committees before establishing the new FDO.

D. FINANCING THE FISCAL YEAR 2022 REQUEST

15. Anticipated carryforward from FY 2021 and prior 

years into FY 2022

Estimated funds available: $20,000,000

The judiciary projects $20 million will be available through 

anticipated carryforward from FY 2021 and prior years into

FY 2022 to offset the FY 2022 appropriation request for the 

Defender Services program. The judiciary will advise the 

appropriations subcommittee staff of any changes to this 

estimate throughout FY 2021.