Resource Management of United States Attorneys' Offices
Audit Report 09-03
November 2008
Office of the Inspector General
U. S. Department of Justice
Executive Office for United States Attorneys
Office of the Director
Main Justice Building, Room 2261
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 514-2121
MEMORANDUM
| DATE: | October 16, 2008 |
| TO: | Raymond J. Beaudet Assistant Inspector General for Audit |
| FROM: | Kenneth E. Melson Director Executive Office for United States Attorneys |
| SUBJECT: | Response to OIG’s Report Entitled: Resource Management of United States Attorneys’ Offices |
This memorandum is submitted by the Executive Office for United States Attorneys (EOUSA) in response to the audit report by the Office of Inspector General (OIG) entitled, “Resource Management of United States Attorneys’ Offices.”
EOUSA appreciates the significant work and effort that the OIG put into this review, as well as the important issues addressed in the report. American taxpayers have a right to the continued efficient and effective use of funds when it comes to the enforcement of federal criminal and civil laws. It is in this spirit that EOUSA has reviewed the OIG’s report and accepts, and will endeavor to carry out to the best of its ability, OIG’s recommendations.
As an initial matter, it is important to note the unique nature of the relationship between EOUSA and the United States Attorneys’ Offices (USAOs), and the status of EOUSA/USAO as a component within the Department of Justice.
Unlike most other DOJ components, EOUSA and the USAOs do not constitute a single hierarchical organization with a headquarters office directing policy decisions and resource management. Rather, each United States Attorney (USA) is the chief law enforcement officer in his or her district. Each USA, unless serving in an acting or interim capacity, is appointed by the President and confirmed by the Senate. As a holder of high office, the USA is afforded significant discretion to manage his or her office according to locally perceived priorities and needs, albeit within the umbrella of overarching Departmental priorities. The 94 USAOs vary in size from 20 employees to over 800 employees. Each office has a unique identity and local “office cultures” vary greatly.
It is in this context that EOUSA interacts with the USAOs to “[p]rovide general executive assistance and supervision to the offices of the U.S. Attorneys.” 28 C.F.R. § 0.22. A primary part of EOUSA’s role is to allocate to each USAO its annual resources and budget. When allocating new FTE among USAOs, EOUSA makes its own initial assessment based on case data, USA-5 data, and other factors. But EOUSA has sought, and will continue to seek, input from the United States Attorneys as part of the resource allocation process.
EOUSA can and does track both the allocation of resources to USAOs, as well as the utilization of those resources by individual USAOs. The re-allocation of resources from one USAO to another, that is, moving FTEs from one office to another, has traditionally proven difficult to effect, given the desire by individual USAs to maintain or increase, but not to decrease, the level of FTEs within that office.
As the OIG report noted, EOUSA has taken recent, further steps to effectuate more flexible resource allocation. In particular, EOUSA has allocated most of the Congressionally authorized FY 2008 FTE in the form of two-year term positions. EOUSA will assess the effectiveness of these term positions at the close of FY 2009 and 2010. The USAOs will be on notice that if these positions are better utilized in other districts, they are subject to removal. We note that, while term positions form part of the solution for more flexible resource allocation, term positions are not without drawbacks, as they can create significant tension within a small office as the term position incumbents vie for permanent slots.
The report also states that several districts exceeded their annual FTE allocation. We note that virtually all of these cases arose as a result of EOUSA’s policy that allowed districts to hire a full time, permanent employee to replace employees who were placed on temporary details. These new hires were subjected to a “next vacancy” provision, which meant that the district would be allowed to exceed its allocation until the next attorney vacancy occurred in the district.
Over the past few years, EOUSA has generally avoided the use of “next vacancy” slots and, instead, provides term attorney positions to fill vacancies created by temporary details. This policy has reduced the likelihood that districts will exceed their allocations for a significant period of time.
With regard to OIG’s findings concerning deficiencies in the USA-5 time system and the LIONS data system, EOUSA welcomes this review as an opportunity to make improvements in these areas. Better and more frequent data entry at the USAO level will enhance the reliability of the data.
While better data is a key factor in better resource allocation, it is also important to note the sensitivities surrounding the use of “matters investigated” and “cases filed” as a measure of efficiency and productivity in a USAO. The investigation of cases and the filing of charges is indeed an objective measure of work done in a USAO, and such statistics will continue to form an important part of how resources are allocated. However, case statistics can never form the ultimate criteria for resource allocation because the goal of a USAO and the Department of Justice is to do justice, and it may be that not filing a case or forbearing from taking action is the appropriate course in any given case. Too much emphasis on case filings alone may lead to a charge of “bounty hunting.” Thus, EOUSA will appropriately balance case statistics with other measures, including time spent as billed under the USA-5 system, to evaluate resource allocation.
Recommendations
EOUSA will endeavor to implement all of the below recommendations to the best of its ability. We believe that each of the recommendations is intended to help enhance EOUSA’s ability to better identify trends in resource utilization, and thereby allow EOUSA to better allocate those resources. In some cases the recommendation will be relatively simple to implement, and we hope such recommendations will prove effective. In other cases, as discussed below, the recommendation will likely prove more challenging to implement.
EOUSA agrees that implementation of such a system as envisioned in this recommendation could advance EOUSA’s ability to identify actual resource utilization. However, parsing out the amount time that should be attributed to a particular issue or count in an investigation, indictment, or trial is not without its complexities. For instance, time spent investigating underlying facts that ultimately lead to a firearms, narcotics, and immigration charge in a single case might, in hindsight, be billed to all three areas of time equally. But should the time be billed before knowing what the ultimate charges will be? While a system delineating such determinations can be created and implemented, it must be simple and not unduly complicated or it will not be utilized. Such simplification will likely reduce its accuracy. EOUSA is presently assessing the best way to carry out this recommendation.
EOUSA agrees that more timely entry of data into the USA-5 system will improve the accuracy and utility of the USA-5 data. EOUSA would like to receive and assess feedback from the USAOs as to how often AUSAs will realistically input their time into the USA-5 system. EOUSA agrees to make recording of time in the USA-5A system mandatory.
EOUSA agrees to develop and implement a more user friendly electronic form for entry of time into the USA-5 system.
EOUSA will endeavor to implement this recommendation, although it is inherently difficult to carry out. EOUSA already has numerous, well defined LIONS program category codes. Each USAO currently applies the same LIONS program category code definitions. Application of these codes to individual cases, however, necessarily requires some degree of interpretation. There are legitimate disagreements as to whether a particular code does or does not apply to a given case. For instance, should a case that prosecutes hacking into a university computer system be labeled as a “computer fraud” case or a “national security/critical infrastructure” case? Should a case against an alien entering the country with drugs be labeled as a narcotics case or an immigration case? The USAOs are presently permitted to label cases with up to three different LIONS codes. EOUSA will, in any event, attempt to delineate a default coding for those commonly charged cases where coding issues might arise.
EOUSA agrees to ensure that reopened cases are not reflected in the statistical reports in the fiscal years in which the cases were reopened.
EOUSA agrees to more closely monitor the LIONS casework transmitted by USAOs to ensure it is accurate and complete.
EOUSA agrees to re-emphasize to the USAOs the importance of utilization and casework data, how the data is used, and the necessity of accurately capturing this data.
EOUSA is in the process of examining the current staffing levels of USAOs, and will continue to do so. EOUSA will also endeavor to implement to the best of its ability the recommendation to develop a method to reallocate resources among USAOs. This latter recommendation is inherently difficult, however, as the report makes clear, given the reluctance of individual USAOs to part with FTE.
EOUSA has begun the process of creating program assessments for key program areas that would review attorney utilization, as measured by USA-5 time as well as other factors. EOUSA expects to produce assessment results at the end of the current fiscal year. In anticipation of these assessments, as they relate to the new term positions that have been allocated, USAOs will be on notice of the criteria on which the new positions will be assessed. Each program area will be assessed according to specific criteria. Some areas, such as immigration prosecutions, will rely on traditional factors such as time according to USA-5 as well as cases filed, according to LIONS. Other areas, such as health care fraud, will not utilize a “cases filed” measure, because such measures are not relevant for prosecutions that typically take years to build.
EOUSA understands that the data in the LIONS database needs to be as reliable and accurate as possible. EOUSA agrees to look for ways to increase the effectiveness and comprehensiveness of case data reviews, which are presently undertaken bi-annually by each USAO. EOUSA staff does not and cannot review the LIONS entries from individual districts to compare them to data entries in the national LIONS. In FY 2008, there were well over 300,000 civil and criminal case and matter entries within the national LIONS system. It simply is not feasible for EOUSA staff to review these entries individually.
EOUSA continues to closely investigate the results of the 50 case survey that is the subject of the discussion on pages 40 and 41 in the report. As indicated in the report, EOUSA did identify a problem with the transmission of case data during the last 12 hours of a given fiscal year and the first 12 hours of the subsequent fiscal year. That issue affects a very limited number of cases and EOUSA has now solved the problem going forward. More importantly, EOUSA does not now believe that this data transmission issue affected any of the 50 cases involved in the survey and discussed in the text. Rather, EOUSA is currently investigating a basic premise of the 50 case survey, namely, whether the cases chosen by OIG were in fact reported as pending in national LIONS. As part of the survey, districts were told that certain cases were showing as pending in national LIONS. These cases were pulled from the “raw data” in the national LIONS system, but may not have been reported as pending in national LIONS due to the operation of certain business rules within the LIONS system. Some districts reported that these cases were showing in their local LIONS database as closed, not pending. If, however, the case was not in fact reported as pending in national LIONS, then the results of the survey would need to be re-assessed. EOUSA will report further to OIG once it has had a complete opportunity to review the data used for the survey. EOUSA will work assiduously to eliminate any data discrepancies that it can confirm in the LIONS system.
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