No FEAR Act
Methods the Justice Department Says It Could Use to Account for Its Per-Case Costs Under the Act Gao ID: GAO-04-863 July 22, 2004Allegations of violations of employment discrimination and whistleblower protection laws against federal agencies can end up in federal court, at which point Department of Justice (DOJ) attorneys generally take over representation of the agency. Attorneys within Justice's Civil Division and U.S. Attorneys Offices generally handle this type of litigation. The Notifications and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) requires agencies to repay the Department of the Treasury's Judgment Fund for discrimination and whistleblower protection settlements and judgments paid on their behalf. While the No FEAR Act does not require agencies to reimburse DOJ for costs incurred in defending them in cases covered under the Act, it does require GAO to review how DOJ could ascertain the cost of representing agencies in each case and what the burden of performing this accounting would be. Based on this requirement, our report provides information on (1) the methods DOJ says it could use to account for the personnel and non-personnel costs that it incurs in handling cases covered under No FEAR on a per-case basis and how soon the Department expects it would be able to do so, and (2) how costly DOJ expects it would be to account for each case. We make no recommendations in this report.
The two DOJ offices that handle cases under No FEAR could start to account for these costs on a per-case basis by the beginning of fiscal year 2006 by changing their current systems and procedures. The Executive Office of United States Attorneys (EOUSA) provides accounting for the U.S. Attorneys, who handled the vast majority of employment discrimination case for DOJ in fiscal year 2002. EOUSA officials said they could account for the per-case costs of cases covered under No FEAR beginning in fiscal year 2006 by using a modification of the way the office currently accounts for health care fraud case as a group. One change necessary would be for U.S. Attorneys and their paralegals to begin to track their time by case, not by group, as they do now. EOUSA would also need to revise its calculation of nonpersonnel costs to allocate these costs to individual cases, instead of by group. The Civil Division could account for No FEAR cases on a per-case basis by the beginning of fiscal year 2005 in the same way it currently conducts per-case accounting for vaccine injury compensation cases. This would include identifying personnel costs by requiring Civil Division legal professionals to track their time for each No FEAR case on which they work and allocating non-personnel costs to each case using a formula for allocating these costs based on the relative amount of time that legal professional work on No FEAR cases versus all other cases. The changes needed for DOJ to begin accounting for costs it incurs in cases covered under No FEAR on a per-case basis would require both start-up and recurring costs. EOUSA says that per-case accounting for No FEAR cases would require about $535,000 in start-up costs--mostly for labor to modify computer systems. Officials from EOUSA did not provide an estimate of their recurring costs, but aid they would not be substantial because the cost calculations required for per-case accounting would be carried out electronically. Officials added, however, that many attorneys may not favor such a change in that it could lead to an added emphasis on the number of cases being handled. Because the Civil Division is already performing per-case accounting for certain types of cases, and because this process could also be used for No FEAR cases, officials said accounting for per-case costs for No FEAR cases would not require substantial start-up costs. Officials from the Division said it would incur an annual cost of about two work weeks to perform the accounting. DOJ officials said that if appropriate features are included, a DOJ-wide financial management information system planned for fiscal year 2008 could make it less costly for the Department to account for costs of No FEAR cases on a per-case basis than the estimates they gave us. The costs that DOJ said it would incur to conduct per-case accounting for No FEAR cases--there is no plan to do so--are estimates and do not reflect the total cost to DOJ of billing and seeking reimbursement for these cases.
GAO-04-863, No FEAR Act: Methods the Justice Department Says It Could Use to Account for Its Per-Case Costs Under the Act
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Report to Congressional Recipients:
July 2004:
NO FEAR ACT:
Methods the Justice Department Says It Could Use to Account for Its
Costs Per Case under the Act:
GAO-04-863:
GAO Highlights:
Highlights of GAO-04-863, a report to congressional recipients:
Why GAO Did This Study:
Allegations of violations of employment discrimination and
whistleblower protection laws against federal agencies can end up in
federal court, at which point Department of Justice (DOJ) attorneys
generally take over representation of the agency. Attorneys within
Justice‘s Civil Division and U.S. Attorneys‘ Offices generally handle
this type of litigation.
The Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (No FEAR) requires agencies to repay the
Department of the Treasury‘s Judgment Fund for discrimination and
whistleblower protection settlements and judgments paid on their
behalf. While the No FEAR Act does not require agencies to reimburse
DOJ for costs incurred in defending them in cases covered under the act, it does require GAO to review how DOJ could ascertain the cost of representing agencies in each case and what the burden of performing this accounting would be. Based on this requirement, our report provides information on
(1) the methods DOJ says it could use to account for the personnel and
nonpersonnel costs that it incurs in handling cases covered under No
FEAR on a per-case basis and how soon the Department expects it would
be able to do so, and (2) how costly DOJ expects it would be to account
for each case. We make no recommendations in this report.
What GAO Found:
Allegations of violations of employment discrimination and
whistleblower protection laws against federal agencies can end up in
federal court, at which point Department of Justice (DOJ) attorneys
generally take over representation of the agency. Attorneys within
Justice‘s Civil Division and U.S. Attorneys‘ Offices generally handle
this type of litigation.
The Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (No FEAR) requires agencies to repay the
Department of the Treasury‘s Judgment Fund for discrimination and
whistleblower protection settlements and judgments paid on their
behalf. While the No FEAR Act does not require agencies to reimburse
DOJ for costs incurred in defending them in cases covered under the
act, it does require GAO to review how DOJ could ascertain the cost of
representing agencies in each case and what the burden of performing
this accounting would be. Based on this requirement, our report
provides information on
(1) the methods DOJ says it could use to account for the personnel and
nonpersonnel costs that it incurs in handling cases covered under No
FEAR on a per-case basis and how soon the Department expects it would
be able to do so, and (2) how costly DOJ expects it would be to account
for each case. We make no recommendations in this report.
www.gao.gov/cgi-bin/getrpt?GAO-04-863.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact George H. Stalcup at
(202) 512-9490 or stalcupg@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
DOJ Could Adopt Modifications to Its Existing Methods to Account for
Costs of Most No FEAR Cases by Case, Beginning in Fiscal Year 2006 :
Accounting for Costs of No FEAR Cases by Case Would Involve Start-Up
Costs and Additional Staff Time, but DOJ Officials Said Neither Cost
Would Be Substantial:
Agency Comments:
Appendixes:
Appendix I: Scope of Laws Covered by the No FEAR Act:
Appendix II: GAO Contact and Staff Acknowledgments:
GAO Contact:
Acknowledgments:
Figures:
Figure 1: Calculations Necessary for DOJ to Begin Accounting for
Personnel Costs of No FEAR Cases by Case for a Fiscal Year:
Figure 2: Calculations Necessary for DOJ to Begin Accounting for
Nonpersonnel Costs of No FEAR Cases by Case for a Fiscal Year:
Letter July 22, 2004:
Congressional Recipients:
Allegations of violations of employment antidiscrimination and
whistleblower protection laws against federal agencies can be resolved
administratively with agency attorneys representing the agency. When
such allegations end up in federal court, Department of Justice (DOJ)
attorneys take over representation of the agency, with assistance
provided by agency attorneys. DOJ attorneys within the Civil Division
and the U.S. Attorneys' Office, which handled the vast majority of the
employment discrimination cases in fiscal year 2002, generally handle
these federal employment cases.
Generally, DOJ's cost of conducting litigation on behalf of the federal
government is paid for out of its appropriations, although its client
agencies bear some costs when their attorneys assist DOJ. DOJ has
authority in some instances to cover its cost of conducting litigation
out of funds other than its appropriations, such as under the National
Vaccine Injury Compensation Program--a no-fault alternative to the
traditional tort system for resolving vaccine injury claims--and health
care fraud and abuse claims.[Footnote 1]
The Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (No FEAR),[Footnote 2] which took effect
October 1, 2003, was intended to make federal agencies more accountable
for their violations of employment discrimination and whistleblower
protection laws. The act attempts to accomplish this by requiring
agencies to reimburse the Judgment Fund[Footnote 3] for employment
discrimination and whistleblower settlements and judgments paid on
their behalf.[Footnote 4] No FEAR does not require agencies to
reimburse DOJ for costs incurred in defending them in cases covered
under the act. No FEAR does, however, require GAO to study and report
on how DOJ could account for the cost of representing agencies in each
case and what the burden of performing this accounting would be.
This report provides information on (1) the methods DOJ officials say
they could use to account for the personnel and nonpersonnel costs that
DOJ incurs in handling cases covered under No FEAR per case and how
soon the department expects to be able to do so and (2) how costly DOJ
expects it would be to account for these costs per case. DOJ defines
personnel costs as the total compensation--salaries, benefits, and
awards--for attorneys and paralegals;[Footnote 5] the nonpersonnel cost
categories include all other costs, such as service contracts, rent,
communications, and utilities.[Footnote 6] Throughout this report we
refer to attorneys and paralegals as "legal professionals."
To address our objectives, we reviewed relevant laws and procedures and
interviewed officials in the Executive Office for U.S. Attorneys
(EOUSA) and the Civil Division. We obtained information from the Civil
Division and EOUSA, which serves as a liaison between DOJ in
Washington, D.C., and the U.S. Attorneys' offices across the country.
In this capacity, EOUSA provides operational and administrative
support--including accounting--to U.S. Attorneys. Neither office
currently accounts for the per case cost of defending cases covered
under No FEAR. For this reason, each office provided an example of the
accounting methods it already uses for other groups of cases and
described to us what changes would be necessary to begin accounting for
costs of each case covered under No FEAR. EOUSA's example is its
accounting for the costs of health care fraud and abuse control cases
by group of cases; the Civil Division's example is its accounting for
vaccine injury compensation cases by case. Using recent historical
costs, EOUSA estimated the cost it would expect to incur in dollars.
The Civil Division estimated its cost in staff time and did not convert
this cost to dollars. These costs represent only estimates of how the
department could account for No FEAR cases by case--there is no plan to
do so--and do not reflect the total cost to DOJ of billing and seeking
reimbursement for these cases. In commenting on a draft of this report,
DOJ officials noted that such a process could also involve negotiating
reimbursement agreements for individual cases, and they added that the
costs of doing so could be significant. Moreover, DOJ officials
stressed that the accounting methods discussed in this report are based
on existing circumstances and if a decision is made to perform
accounting by case for No FEAR cases, the methods chosen could differ.
We reviewed the supporting documentation that the offices provided to
us related to these estimates and interviewed officials of both offices
about them. On the basis of our assessment of DOJ's estimates, which
are not based on a formal, rigorous methodology, we determined that the
data provided by DOJ were sufficiently reliable for purposes of
illustrating a method that it could use for accounting by individual
case.
We conducted our work from November 2002 through May 2004 in accordance
with generally accepted government auditing standards.
Results in Brief:
The two DOJ offices that handle cases covered under No FEAR say they
could begin accounting for their costs of each of these cases by the
beginning of fiscal year 2006 by changing their current systems and
procedures. EOUSA could account for the costs of each case covered
under No FEAR in fiscal year 2006 by adopting a modification of the
method it uses to account for health care fraud cases. Rather than
tracking the work they do on No FEAR cases by group in a manner similar
to how they track their work on health care fraud cases, legal
professionals within the U.S. Attorneys' Office would be required to
track their time by individual case. EOUSA would also need to revise
its calculation of nonpersonnel costs to allocate these costs to
individual cases instead of groups of cases, as EOUSA does now. The
Civil Division could account for its costs of No FEAR cases by case by
the beginning of fiscal year 2005 in the same way it currently conducts
accounting by case for vaccine injury compensation cases. This would
include identifying personnel costs by requiring Civil Division legal
professionals to track their time for each No FEAR case on which they
work and allocating nonpersonnel costs to each case using a formula
based on the relative amount of time that legal professionals work on
No FEAR cases versus all other cases.
If DOJ were to begin accounting for costs it incurs in cases covered
under No FEAR by case, agency officials said such accounting would
require both start-up costs and recurring costs. For EOUSA, accounting
by case for No FEAR cases would require about $535,000 in start-up
costs, mostly for labor to modify computer systems. Although EOUSA
officials did not provide an estimate of recurring costs, they
indicated that these costs would not be substantial because the cost
calculations required for accounting by case would be carried out
electronically. EOUSA told us that the office might face resistance
from many of its attorneys if they were required to begin tracking
their time by case. Such resistance would stem from the culture in
which the attorneys work. EOUSA explained that many U.S. attorneys
believe that tracking their time by case could lead to an added
emphasis on the number of cases being handled. Because the Civil
Division already tracks costs by case for certain groups of cases and
could use this method to account for each No FEAR case, the Civil
Division said there would be no significant start-up costs to begin
accounting for costs by case for No FEAR cases. Officials estimated an
annual recurring cost of about 2 work weeks would be incurred and that
the additional staff time spent on this task would compete with other
responsibilities, such as responding to requests for financial
information. DOJ officials said that if appropriate features are
included, a DOJ-wide financial management information system that
should be available to the Civil Division and EOUSA by fiscal year 2008
could make it less costly for the department to account for costs of No
FEAR cases by case than the estimates they gave us. DOJ officials also
said that a system that includes the ability to calculate and integrate
personnel and nonpersonnel case costs electronically would enable both
EOUSA and the Civil Division to account for the costs of cases covered
by No FEAR by case more efficiently.
DOJ provided technical and clarifying comments to a draft of this
report, which we incorporated. With these changes, DOJ generally agreed
with the facts presented in this report.
Background:
The types of cases covered by No FEAR include employment discrimination
cases brought under various federal antidiscrimination statutes and
certain prohibited personnel practice cases, including whistleblower
protection. (See app. I for further information on the scope of laws
covered by No FEAR.) No FEAR was intended to (1) make agencies more
accountable for their violations of certain employee protection laws,
(2) increase agencies' compliance with these laws, and (3) improve
congressional oversight. In addition to requiring agencies to repay the
Judgment Fund, No FEAR attempts to accomplish these goals by requiring
each agency to (1) provide employees written notification of, and
training on, their rights under the laws covered by the act; (2) submit
annual reports on its No FEAR cases to congressional entities, the
Equal Employment Opportunity Commission (EEOC), and the Attorney
General; and (3) post on Treasury's public Web site summary statistical
data on employment discrimination complaints filed involving the
agency.
The Civil Division has responsibility for a broad range of civil
litigation, including defending the United States, its agencies, or
officers in suits challenging the constitutionality, lawfulness, or
propriety of presidential initiatives, federal statutes, and government
programs and actions. The Civil Division delegates to the U.S.
Attorneys in the states and U.S. territories the responsibility for
handling a great many of these cases, including most No FEAR cases. For
example, U.S. Attorneys handled the vast majority of employment
discrimination cases in fiscal year 2002. No FEAR cases that are not
handled by U.S. Attorneys are generally assigned to the appropriate
part of the Civil Division.
DOJ has authority in certain instances to cover its costs of providing
litigation services out of funds other than its appropriations. For
example, the Health Care Fraud and Abuse Control (HCFAC) program
established by the Health Insurance Portability and Accountability Act
of 1996[Footnote 7] includes the authority for DOJ to cover its costs
incurred in engaging in HCFAC-related activities out of an account in
the Federal Hospital Insurance Trust Fund. HCFAC is jointly
administered by the Department of Health and Human Services (HHS),
through its inspector general, and DOJ. Officials from these agencies
work with federal, state, and local law enforcement to control fraud
and abuse in health care, in both public and private health plans. The
federal government won or negotiated more than $1.8 billion in
judgments, settlements, and administrative awards in health care fraud
cases and proceedings in fiscal year 2002, the latest year for which
such figures are available. The U.S. Attorneys prosecute civil and
criminal HCFAC cases in U.S. district courts and handle appeals in
higher courts. The Civil Division is also involved in health care fraud
cases.
DOJ also has authority to cover its costs incurred out of funds other
than its appropriations in cases under the National Vaccine Injury
Compensation Program (VICP), which was established by the National
Childhood Vaccine Injury Act of 1986[Footnote 8] and took effect
October 1, 1988. HHS administers the program. Under the program, an
individual claiming a vaccine-related injury or death can file a
petition for compensation against the Secretary of HHS with the U.S.
Court of Federal Claims, which determines if the individual is entitled
to an award and, if so, the amount. DOJ defends HHS in these
proceedings. The Vaccine Injury Compensation Trust Fund pays the awards
and the federal government's costs of administering the program,
including the Civil Division's costs in representing HHS.[Footnote 9]
DOJ Could Adopt Modifications to Its Existing Methods to Account for
Costs of Most No FEAR Cases by Case, Beginning in Fiscal Year 2006:
The two DOJ offices that handle No FEAR cases said they could account
for costs by case by using a modification of the methods they now use
to account for HCFAC and vaccine injury compensation cases. EOUSA
stated that it could modify the electronic accounting it uses for the
HCFAC group of cases to account for each case covered by No FEAR by
case, beginning in fiscal year 2006. The Civil Division said that it
could account for costs per case of No FEAR cases by the beginning of
fiscal year 2005 in the same way it performs individual case accounting
for VICP cases. The calculation of personnel and nonpersonnel costs for
both offices under the modified scenario would be similar.
EOUSA Could Account for Each No FEAR Case by Adopting Modifications to
Its Current Accounting for Health Care Fraud Cases:
Officials from EOUSA told us that they could account for the costs of
each case covered under No FEAR by using a modification of its current
accounting procedures for the HCFAC group of cases beginning in fiscal
year 2006. To calculate its cost for handling HCFAC cases as a group in
a fiscal year, EOUSA calculates personnel and nonpersonnel costs
separately and then adds them together. EOUSA officials told us that
they determine the personnel costs of the HCFAC group of cases in a
particular fiscal year in three steps: calculating the hourly
compensation rates for each legal professional for all cases,
calculating each of these individual's total compensation for work
performed on HCFAC cases, and adding these compensation amounts
together.
EOUSA officials told us that they determine nonpersonnel costs for
HCFAC cases by allocating costs as a group based on the relative amount
of time that its legal professionals worked on HCFAC cases versus all
other cases. This calculation for a fiscal year is determined in three
steps: determining the percentage of case hours its legal professionals
were paid for work on HCFAC cases versus all other cases, applying this
percentage to the cost for each nonpersonnel category for the HCFAC
group of cases, and adding up the costs for each nonpersonnel cost
category for HCFAC cases.
For EOUSA to begin accounting for personnel costs for each case covered
under No FEAR, legal professionals within the U.S. Attorneys' Office
would have to change how they track their time. Instead of tracking
their time by group of cases, as they do now, they would have to track
their time by individual case, so that officials could determine the
personnel time spent on each case. (See fig. 1.)
Figure 1: Calculations Necessary for DOJ to Begin Accounting for
Personnel Costs of No FEAR Cases by Case for a Fiscal Year:
[See PDF for image]
[A] Legal professionals include attorneys and paralegals working on a
case.
[B] Total compensation includes salaries, benefits, and awards.
[C] Attorneys are paid for a maximum of 40 hours per week.
[End of figure]
EOUSA officials said that to begin accounting for the nonpersonnel
costs of each case covered under No FEAR would require a departure from
its current accounting. EOUSA would need to calculate the nonpersonnel
cost for each No FEAR case based on the relative amount of personnel
time spent on that case versus all cases (see fig. 2). Cases requiring
more personnel time would be allocated proportionately more
nonpersonnel costs than cases requiring less personnel time.
Figure 2: Calculations Necessary for DOJ to Begin Accounting for
Nonpersonnel Costs of No FEAR Cases by Case for a Fiscal Year:
[See PDF for image]
[A] Legal professionals include attorneys and paralegals working on a
case.
[B] Examples of nonpersonnel cost categories are GSA rent, service
contracts, and printing.
[End of figure]
EOUSA officials said that to perform these calculations, they would
need to modify EOUSA's electronic systems for tracking personnel time
and the legal activities to which that time is devoted. EOUSA estimates
it could do this by the beginning of fiscal year 2006.
The Civil Division Could Use Current Methods to Account for No FEAR
Cases by Case:
Civil Division officials told us that they could account for costs of
cases covered by No FEAR by case by the beginning of fiscal year 2005
in the same way they already account for the individual costs of VICP
cases. For each No FEAR case, personnel costs could be calculated by
linking data from the case management system, which tracks the time
legal professionals worked by case and group of cases, with payroll
data. Other than travel costs, which can be tracked by case,
nonpersonnel costs for an individual case are not tracked by the Civil
Division; these costs could be allocated using a formula based on the
relative amount of time that legal professionals work on No FEAR cases
versus all other cases.
Accounting for Costs of No FEAR Cases by Case Would Involve Start-Up
Costs and Additional Staff Time, but DOJ Officials Said Neither Cost
Would Be Substantial:
If DOJ were to begin accounting for cases covered under No FEAR by
case, EOUSA would incur start-up costs, but no substantial recurring
costs, while the Civil Division would incur a recurring cost, but no
substantial start-up costs. DOJ officials also said that an electronic
financial management information system (FMIS) that the department is
planning for use throughout DOJ beginning by fiscal year 2008 could
make it easier for both offices to account for costs of these cases by
case because it would track nonpersonnel costs.
Neither EOUSA nor the Civil Division Anticipates Substantial Costs:
EOUSA estimates that accounting for the individual costs of cases
covered under No FEAR would require about $535,000 in start-up costs--
about $500,000 to modify its electronic case management system, which
provides information to manage cases and track personnel costs, and
about $35,000 for administrative oversight. The $500,000 estimate
consists of labor costs of 85 work weeks for workers with differing
skill levels and is based on EOUSA's knowledge of system architectures
and estimates of the cost of comparable modifications. Once these
changes were made, EOUSA officials told us that individual case
accounting would be carried out electronically and would not involve
substantial recurring costs, although the officials did not provide an
estimate of these costs.
EOUSA officials noted that the office might face resistance from many
of its attorneys if they were required to begin tracking their time by
case. This resistance would stem from the culture within which the
attorneys work. EOUSA officials explained that U.S. Attorneys believe
that tracking their time by case could lead to an added emphasis on the
number of cases being handled.
The Civil Division estimated that it would incur 2 work weeks of
recurring costs to produce cost reports required for accounting by case
of No FEAR cases. The division would not have significant start-up
costs because it is already accounting for certain groups of cases by
case. Attorneys in the division's litigating branches would have to
begin flagging No FEAR cases with a special code that would then be
entered into the division's case management system. The system could
then track the number of hours that attorneys and paralegals reported
working on each No FEAR case. The Civil Division's accounting staff
would retrieve these data. The division did express concern that this
work might compete with other staff responsibilities, such as
responding to requests for financial information. Civil Division
officials also noted that additional work would be involved if it were
to start such accounting after the beginning of a fiscal year. In this
scenario, the division would have to identify the No FEAR cases,
identify personnel costs for each case, use a formula for estimating
the nonpersonnel costs for each case based on the relative amount of
time that legal professionals work on No FEAR cases versus all other
cases, and use electronic spreadsheets to apply this formula.
A New Financial Management Information System Could Make It Easier for
DOJ to Account for Costs of No FEAR Cases by Case:
DOJ has recently started planning an electronic FMIS that is expected
to be available departmentwide beginning in fiscal year 2008, although
certain agencies within the department may be able to use the system
before then. DOJ officials said that a system that includes features
such as the ability to calculate and integrate personnel and
nonpersonnel case costs electronically could make it less costly to
account for the costs of individual cases covered by No FEAR than the
estimates they gave us. DOJ officials based their statement on the
expectation that FMIS's ability to track nonpersonnel costs will make
it possible to integrate data from its case management and financial
management systems to track all costs directly.
Agency Comments:
On June 17, 2004, we provided a draft of this report to DOJ for review
and comment. DOJ e-mailed clarifying and technical comments, which we
incorporated. With these changes, DOJ officials indicated general
agreement with the report.
We will send copies of this report to interested congressional
committees; the Attorney General; Assistant Attorney General, Civil
Division; and the EOUSA Director. We will also make copies available to
others upon request. In addition, the report will be available at no
charge on GAO's Web site at [Hyperlink, http://www.gao.gov]. If you or
your staff have questions about this report, please call me at (202)
512-9490 or Belva Martin, Assistant Director, on (202) 512-4285. Key
contributors to this report are listed in appendix II.
Signed by:
George H. Stalcup:
Director:
Strategic Issues:
Congressional Recipients:
The Honorable Ted Stevens:
President Pro Tempore:
United States Senate:
The Honorable J. Dennis Hastert:
Speaker of the House:
House of Representatives:
The Honorable Susan M. Collins:
Chairman:
The Honorable Joseph I. Lieberman:
Ranking Minority Member:
Committee on Governmental Affairs:
United States Senate:
The Honorable F. James Sensenbrenner, Jr.:
Chairman:
The Honorable John Conyers, Jr.:
Ranking Minority Member:
Committee on the Judiciary:
House of Representatives:
The Honorable Jo Ann Davis:
Chairwoman:
The Honorable Danny K. Davis
Ranking Minority Member:
Subcommittee on Civil Service and Agency Organization:
Committee on Government Reform:
House of Representatives:
[End of section]
Appendixes:
Appendix I: Scope of Laws Covered by the No FEAR Act:
No FEAR cases include cases brought in federal district court by job
applicants and current or former federal employees under any of the
provisions of the following laws: [Footnote 10] (1) section 717 of the
Civil Rights Act of 1964, as amended,[Footnote 11] which prohibits
discrimination on the basis of race, color, religion, sex, or national
origin; (2) sections 12 and 15 of the Age Discrimination in Employment
Act of 1967,[Footnote 12] which prohibits discrimination on the basis
of age; (3) the Equal Pay Act of 1963,[Footnote 13] which prohibits
sex-based wage discrimination, and (4) section 501 of the
Rehabilitation Act of 1973,[Footnote 14] which prohibits discrimination
on the basis of disability. Prior to filing in federal court,
individuals alleging violations of these discrimination laws typically
are required to exhaust administrative remedies.
No FEAR cases also include cases appealed from the Merit Systems
Protection Board (MSPB)[Footnote 15] to federal court, such as the U.S.
Federal Circuit Court of Appeals, alleging violation of certain
prohibited personnel practices--most notably retaliation for
whistleblowing.[Footnote 16]
Agency attorneys are responsible for representing their agency while a
matter is at the administrative stage, either before EEOC or MSPB.
However, once a matter is filed in district court or appealed to the
U.S. Federal Circuit Court of Appeals, DOJ attorneys generally take
over representation of the agency, with assistance provided by counsel
from the client agency.
[End of section]
Appendix II: GAO Contact and Staff Acknowledgments:
GAO Contact:
Belva Martin, (202) 512-4285:
Acknowledgments:
Karin Fangman, Amy Friedlander, Domingo Nieves, and Michael Rose also
made key contributions to this report.
(450327):
FOOTNOTES
[1] For these types of cases, the department generally accounts for
costs by group of cases.
[2] Pub. L. No. 107-174, 116 Stat., 566 (May 15, 2002).
[3] The Judgment Fund is a permanent, indefinite appropriation
administered by the Department of the Treasury.
[4] We previously issued a report on the potential financial impact on
the Treasury Department of administering the No FEAR Act: U.S. General
Accounting Office, Judgment Fund: Treasury's Estimates of Claim Payment
Processing Costs under the No FEAR Act and Contract Disputes Act, GAO-
04-481 (Washington, D.C.: Apr. 28, 2004).
[5] The Civil Division's estimate also includes the time that staff
would spend compiling data on No FEAR cases.
[6] Other nonpersonnel costs include: travel and transportation, mail
management, printing and reproduction, operation and maintenance of
facilities, medical care, operation and maintenance of equipment, use
of financial management system, personnel services, payroll services,
financial operations services, office automation, and equipment.
[7] Pub. L. No. 104-191, 110 Stat. 1936 (Aug. 21, 1996).
[8] Pub. L. No. 99-660, Title III, 100 Stat. 3755-3784 (Nov. 14, 1986).
[9] 26 U.S.C. 9510(c)(1)(B).
[10] No FEAR cases are identified under section 201 of the act. Section
201(a)(2) permits the identification of additional cases through
implementing regulations.
[11] 42 U.S.C. § 2000e-16.
[12] 29 U.S.C. § 631, 633a.
[13] 29 U.S.C. § 206(d).
[14] 29 U.S.C. § 791.
[15] MSPB is an independent, quasijudicial agency in the executive
branch.
[16] Section 201(c)(1).
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