- While the number of attorney FTEs allocated to USAOs increased approximately 5 percent during our 5-year review period, USAOs utilized 5 percent fewer attorney FTEs in FY 2007 than in FY 2003. EOUSA officials attributed this situation to budget constraints. In addition to USAOs utilizing fewer attorney FTEs than allocated, we found that USAOs were not always utilizing attorney resources as funded by Congress. For example, USAOs expended more FTEs than allocated on firearms violations, health care fraud, and OCDETF matters, and expended significantly fewer FTEs than allocated on counterterrorism matters. Moreover, we found that EOUSA does not routinely perform comprehensive reviews of the number of attorneys utilized on specific types of criminal matters within each USAO. Instead, EOUSA relies on infrequent EARS reviews of utilization data and therefore does not receive timely information about district resource management issues.
USAO attorney resources are measured in FTEs, and the number of FTEs assigned to an office by the Department is called its allocated amount. The use of these resources, which is referred to as utilization, is tracked through the USA-5 time reporting system.
We obtained and analyzed data on both the allocation and utilization of attorney FTEs for FYs 2003 through 2007. As noted in Chapter 2, we identified several concerns with the accuracy and reliability of the USA-5 data. While we believe that these concerns may affect the analyses we performed, the overall results presented are useful for examining the utilization of attorneys in the USAOs. Further, the USA-5 data is the only utilization data available for purposes of our audit.
The number of attorney FTEs allocated to USAOs increased by 5 percent from 5,459 attorney FTEs in FY 2003 to 5,708 in FY 2007.31 The following exhibit depicts attorney FTEs allocated to USAOs, which includes positions directly funded through the U.S. Attorney organization’s budget and those funded through reimbursable programs such as OCDETF.
We also analyzed the allocations among individual USAOs and found that 4 of 93 offices had fewer allocated attorney FTEs in FY 2007 than in FY 2003, 73 offices had a greater number of allocated attorney FTEs, and 16 offices had the same number of allocated attorney FTEs during the same period.32
The following exhibit presents the USAOs experiencing the greatest changes - both increases and decreases – in allocated attorney FTEs from FYs 2003 to 2007. As shown, the Districts of South Dakota and the Virgin Islands each decreased by 1 FTE, or 3 percent and nearly 5 percent, respectively. In contrast, the greatest increase experienced by any single USAO in our review period occurred in the Northern District of Illinois, which was allocated 15 more attorney FTEs in FY 2007 than in FY 2003, equating to a 10‑percent growth.
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As shown in Exhibit 3-3, in contrast to the total number of attorney FTEs allocated, which increased by about 5 percent from FYs 2003 to 2007, the total number of attorney FTEs utilized decreased during this same period.
We analyzed the USA-5 data for all attorney FTEs utilized by USAOs, grouped into three broad areas: (1) criminal matters, (2) civil matters, and (3) management and administration.33 For this analysis, we included regular time worked as well as additional hours worked in excess of a regular 40-hour work week (which we refer to as additional hours or additional FTEs).34 While these figures do not represent the actual number of attorneys within USAOs, we believe it more closely reflects the total level of effort expended by attorneys.35
The following exhibit presents the total number of attorney FTEs utilized from FYs 2003 to 2007. As illustrated in the following table, USAOs utilized 292 fewer attorney FTEs in FY 2007 than in FY 2003 and expended the majority of their attorney resources on criminal matters.
TOTAL ATTORNEY FTEs UTILIZED
FYs 2003 THROUGH 2007
FY 2007 –
FY 2007 –
|Source: OIG analysis of USA-5 data|
EOUSA officials explained that the decline in attorney FTEs utilized was primarily a result of budget limitations occurring throughout most of our review period. According to EOUSA officials, the USAOs have not received enough funding to support the number of FTEs authorized in the annual appropriations. A senior EOUSA official informed us that EOUSA allocates all FTEs regardless of whether it has the necessary funding to actually support the FTEs. Appendix V lists each USAO and the total number of attorney FTEs utilized during FYs 2003 and 2007.
Agency-wide Gap between Allocated and Utilized Attorney FTEs
During our review, we examined each USAO’s total allocated attorney FTEs to the actual number of attorney FTEs utilized.36 The following exhibit displays the comparison of allocated FTEs to utilized FTEs for FYs 2003 through 2007.
From this analysis, we determined that, in general, the gap between the allocated attorney FTEs and the attorney FTEs actually expended increased significantly throughout our review period. The largest gap between the allocated and utilized FTEs occurred in FY 2007, when USAOs utilized 628 fewer FTEs than allocated. Overall, this gap ranged from 3 to 11 percent during our review period.
According to EOUSA officials, the increase in the gap between allocated and expended FTEs was primarily a result of budget limitations in which USAOs did not have adequate funding to hire personnel up to the authorized level of FTEs. An EOUSA Assistant Director responsible for budget matters told us that the funding increases the organization received between FYs 2003 and 2007 were not enough to cover cost-of-living adjustments, increases in rent, and similar types of annual rising costs. Moreover, this official stated that EOUSA could not fully fund all of its reimbursable positions, such as OCDETF, with the reimbursable money provided for these positions. According to this official, since the reimbursable funding remained constant during our review period while costs increased, EOUSA had to supplement reimbursable funding with its direct appropriations. The EOUSA official said that, as a result, there were insufficient funds to fill these unused attorney FTEs.
We found, however, that additional hours worked by existing attorneys made up for the gaps between allocated and expended attorney FTEs that we identified. The USA-5 data we analyzed indicated that attorneys worked significantly in excess of 40 hours per week, which, as discussed previously, is uncompensated. When these additional attorney work hours are incorporated into the utilization data, the results reflect that the USAOs actually utilized a greater number of attorney FTEs than allocated, as shown in Exhibit 3-5.
USAO-specific Gaps between Allocated and Utilized Attorney FTEs
Despite the overall results presented in Exhibit 3-4, we identified 34 offices utilizing more attorney FTEs (ranging from 0.01 FTE to 3.82 FTEs), when excluding additional hours, than they were allocated during at least one fiscal year of our review period. According to EOUSA officials, this occurred due to the use of term positions as well as waivers granted by EOUSA that were not recorded in the allocation database.37 Specifically, districts are sometimes provided term positions to backfill for AUSAs who are detailed to another DOJ component. During such details, both the detailed AUSA and the backfilled term position report their time on the USA-5 of the detailed AUSA’s home district, which will indicate that a district is utilizing more resources than allocated. Further, a waiver allows a district to over-hire for a specific purpose or time period. As a result, the USAO may report a greater utilization of resources on the USA-5 than resources allocated for the period. However, EOUSA did not confirm that these explanations applied to each of the instances identified in our analysis.
We further examined the gap between the allocation and utilization of USAO attorney FTEs according to office size. During our review period, EOUSA categorized offices into 4 types based upon the allocated attorney staffing levels – extra-large (greater than or equal to 100 attorneys), large (between 45 and 99.9 attorneys), medium (between 25 and 44.9 attorneys), and small (less than 25 attorneys). Using this categorization scheme, we found that the percentage of unused attorney FTEs (expending fewer attorney FTEs than allocated) within each group generally increased from FYs 2003 to 2007 as depicted in Exhibit 3-6.
PERCENTAGES OF USAO UNUSED ATTORNEY FTEs
FYs 2003 THROUGH 2007
|USAO Category||FY 2003||FY 2004||FY 2005||FY 2006||FY 2007|
|Source: OIG analysis of EOUSA Resource Management and Planning Staff and USA-5 data|
We determined that the percentage of unused attorney FTEs was, on average, highest among the extra-large and large offices. An EOUSA official explained that the extra-large and large offices maintain larger budgets with considerable staffs. Therefore, when EOUSA began experiencing budget shortages, EOUSA decided to target these offices first because it believed that the extra-large and large offices could better sustain greater budget cuts and vacancies than the medium and small offices. Moreover, this EOUSA official explained that the extra-large and large offices tend to be located in metropolitan areas that generally experience greater cost of living fluctuations, as well as larger job markets, which affect the turnover of staff and attrition rates at these USAOs. Appendix VI displays the percentage gap between allocated and expended attorney FTEs for each USAO.
EOUSA uses the term “burn rate” to refer to the difference between allocated resources and actual utilized resources. An “overburn” occurs when more resources are utilized than allocated, and an “underburn” occurs when fewer resources are utilized than allocated. We calculated burn rates by comparing the numbers of attorney FTEs allocated to specific program areas to time utilization data from the USA‑5 system to determine if USAOs were utilizing attorneys in accordance with the funding provided by Congress for specific activities to which the FTEs were allocated.
We focused this analysis on the program areas of counterterrorism, firearms, health care fraud, and OCDETF because EOUSA specifically tracks the allocation and utilization of attorneys for each of these areas. We found that in total USAOs were expending more resources than were allocated in several of these areas. However, the USAOs were not expending as many attorney FTEs on counterterrorism matters as allocated throughout our review period.
As shown in Exhibit 3-7, USAOs were allocated 250 attorney FTEs for counterterrorism matters during FYs 2003 through 2005. The USAOs only expended between 151 and 163 FTEs on these matters during this period. Including additional hours worked by attorneys, the USAOs utilized between 189 and 204 attorney FTEs, significantly less than the allocated FTE levels.
An additional 43 attorney FTEs were allocated to USAOs for counterterrorism in FY 2006. During FYs 2006 and 2007, the USAOs had a total of 293 attorney FTEs allocated for counterterrorism matters. Nonetheless, as reflected in the following exhibit, the USAOs continued expending approximately the same number of attorney FTEs on counterterrorism matters in FYs 2006 and 2007 as they had during FYs 2003 through 2005. During the audit close-out meeting, the EOUSA Director explained that due to the timing of the FY 2006 appropriations, these additional counterterrorism attorney FTEs would not have been captured (or utilized) until FY 2007 or later. Nonetheless, based on our analysis of this data collected during our review period, it appears that USAOs are not devoting the full amount of allocated attorney resources to counterterrorism matters.
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We discussed this discrepancy with the EOUSA Director, who told us that EOUSA recently became aware of this underutilization and had reported the matter to the Deputy Attorney General and the AGAC. He explained that this underburn was partially due to inaccurate time reporting by AUSAs and partially due to investigative agencies not bringing as many terrorism-related matters to the USAOs as they had in the past. He stated that USAOs should be expending appropriate resources in priority areas, such as counterterrorism, and said he is working with the AGAC to enhance utilization of AUSAs in counterterrorism. In particular, the Director stressed the importance of USAOs being proactive in their terrorism-related work, such as participating in local task forces and other activities that may not be associated with specific terrorism cases.
We also reviewed the counterterrorism burn rates within each USAO and found that the number of districts that used at least 1.50 fewer attorney FTEs in counterterrorism matters than allocated increased from 11 USAOs in FY 2003 to 28 USAOs in FY 2007. For example, during FYs 2003 to 2006, the Southern District of New York was allocated 15 attorney FTEs for counterterrorism work, yet the district consistently utilized less than was allocated – ranging from an underutilization of 5.65 to 11.80 FTEs. Additionally, we determined that the Eastern District of Virginia underutilized 7.54 attorney FTEs allocated to counterterrorism during FY 2007.
In addition to the counterterrorism underburns identified among districts, we found that some districts received an additional allocation of counterterrorism resources in FY 2006 even though those districts had not fully expended the allotment of counterterrorism FTEs provided to them during FYs 2003 through 2005. For instance, the District of New Jersey was allocated 8 attorney FTEs for counterterrorism purposes during FYs 2003 through 2005, but only utilized between 5.38 and 6.33 attorney FTEs to address such matters during this time period. In FYs 2006 and 2007, the District of New Jersey’s counterterrorism allocation increased to 9 attorney FTEs, yet the district expended even fewer attorney FTEs on such matters during this timeframe – thus resulting in a greater underburn. Appendix VII illustrates the underutilization or overutilization of attorney FTEs on counterterrorism matters for each USAO.
In contrast to our review of counterterrorism burn rates, throughout our review period USAOs generally expended more attorney FTEs than were allocated on firearms, health care fraud, and OCDETF matters. For example, USAOs continued to utilize more attorney FTEs than were allocated on health care fraud matters during FYs 2003 through 2007, as depicted in Exhibit 3‑8. Although the number of attorney FTEs addressing health care fraud matters has steadily declined from FYs 2004 to 2007, USAOs were still expending at least 65 more FTEs (including additional hours worked by attorneys) than allocated during this timeframe.
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Several USAOs were utilizing fewer attorney FTEs than allocated for health care matters. For example, the Southern District of New York was allocated six attorney FTEs for health care fraud purposes but, on average, only utilized half of these resources on such matters during FYs 2005 through 2007. Moreover, we found that some offices were allocated an attorney FTE to address health care fraud matters but expended little, if any, attorney resources on such matters during our review period. An illustration of the overutilization and underutilization by individual USAOs on health care fraud matters is provided in Appendix VIII.
USAOs in total have been allocated a significant number of attorney FTEs for OCDETF drug cases, ranging from 468 FTEs in FY 2003 to 582 FTEs in FY 2007. Except for a slight decline in FY 2004, there has been a continual increase in the number of attorney FTEs utilized by USAOs on OCDETF matters throughout our review period. Exhibit 3-9 presents the attorney resource data related to OCDETF.
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Throughout our review period, the majority of USAOs utilized more attorney FTEs on OCDETF matters than were allocated for this purpose. The District of Columbia, Southern District of Florida, and Northern District of Illinois were among the top five USAOs that experienced an overburn in this area during each of the 5 fiscal years under review. Appendix IX shows which USAOs underutilized or overutilized attorney FTEs on OCDETF matters.
Similar to our results regarding OCDETF, USAOs have continued to utilize more attorney FTEs than allocated on firearms matters from FYs 2003 through 2007. However, the overburn has gradually decreased from FY 2004 to FY 2007, as reflected in Exhibit 3‑10.
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Overall, USAOs used more attorney resources than allocated on firearms matters. However, 20 districts expended at least 1 fewer attorney FTE than allocated on such matters during FY 2007. For example, the Eastern District of Missouri was allocated six attorney FTEs for firearms matters but only used approximately one attorney FTE on such matters during each fiscal year of our review period. In contrast, the District of Columbia significantly exceeded its FTE firearms allotment during each fiscal year of our review, ranging from an overutilization of 23.39 FTEs in one year to 61.77 FTEs in another year. A district-by-district assessment of attorney FTEs addressing firearms matters is contained in Appendix X.
At the audit close-out meeting, EOUSA officials stated that EOUSA and the USAOs have begun to address the underutilization of personnel resources in particular prosecutive areas.
EOUSA does not receive routine resource utilization reports that provide a comprehensive assessment of the number of attorneys being utilized on specific types of matters within each USAO. Rather, EOUSA monitors the utilization of resources to some degree as part of each district’s EARS reviews, which, as explained in Chapter 1, were being conducted every 4 to 5 years during our review period. The Data Analysis Staff at EOUSA also analyzes USAO data on an ad hoc basis when the office receives a request. According to a high-ranking EOUSA official, however, EOUSA does not have sufficient and regular knowledge of how many and what kind of resources the USAOs utilize, which makes it difficult to determine what resources an office needs. Because EOUSA relies on the infrequent EARS reports and ad hoc Data Analysis Staff reviews, it has remained unaware of district resource usage for lengthy periods of time.
We believe that EOUSA should perform comprehensive assessments on the number of attorneys utilized on specific types of matters within each USAO on a regular basis. These types of assessments would provide EOUSA with a better understanding on how many and what kind of resources USAOs utilize, which would provide important information to determine what resources an office needs. EOUSA told us that they are aware of this problem and that they plan to create a systematic model to regularly collect and review this type of information. However, while we believe such comprehensive reviews will provide EOUSA with critical information, as discussed in Chapter 2, EOUSA must first correct the deficiencies affecting the reliability of this data.
In addition, as part of its efforts we believe that EOUSA should include analyses that are similar to what we have described in this chapter. Specifically, EOUSA should include in this process routine reviews of USAO burn rates in specific prosecutorial areas to help it identify potential misallocations of resources and take corrective action in a timely manner.
We determined that the number of attorney FTEs allocated to USAOs increased by approximately 5 percent throughout our review period. In contrast, USAOs utilized 5 percent fewer attorney FTEs in FY 2007 than in FY 2003.
Our analyses revealed that, in general, the overall gap between allocated and utilized attorney FTEs significantly increased throughout our review period. According to EOUSA officials, this increase occurred mainly because USAOs had limited budgets to address annual rising costs, such as cost-of-living adjustments and increases in rent, and also had to use a portion of their budgets to fully staff reimbursable program areas. As a result, USAOs did not have adequate funds remaining to fill the authorized level of attorney FTEs.
However, we determined that these gaps between allocated and utilized attorney FTEs were mitigated when we factored additional hours worked by attorneys into our evaluation. When combining the additional hours with the regular time charged by attorneys, the USAOs utilized a greater number of attorney FTEs than allocated throughout our review period.
We also analyzed the utilization of attorney resources on specific prosecutorial matters. Based upon this analysis, we determined that EOUSA is not regularly monitoring the use of USAO resources and the purposes for which the resources were allocated. We found that USAOs did not devote the allocated level of attorney resources on counterterrorism matters throughout our review period. We also identified an underutilization of attorney resources in other prosecutorial areas within some individual USAOs, including health care fraud and OCDETF matters. In contrast, we identified an “overburn” of attorney resources addressing firearms, health care fraud, and OCDETF matters. At the audit close-out meeting, EOUSA officials stated that EOUSA and the USAOs have begun to address the underutilization of personnel resources in particular prosecutive areas.
EOUSA management does not receive routine resource utilization reports that provide a comprehensive assessment of the number of attorneys being utilized on specific types of matters within each office. Although EOUSA asks about the utilization of resources as part of periodic EARS reviews, individual offices have recently been reviewed only every 4 to 5 years. We believe that EOUSA should perform a comprehensive assessment on the number of attorney FTEs utilized on specific types of matters within each USAO on a regular basis to identify any resource utilization issues similar to what we found and to obtain information for assessing what resources an office needs.
We recommend that EOUSA:
- Perform comprehensive assessments on a regular basis of the number of attorneys utilized on specific types of matters within each USAO, including a comparison to where the resources were allocated.
- For purposes of our report, “attorneys” refer to both U.S. Attorneys and Assistant U.S. Attorneys.
- While there are 94 USAOs, the allocation figures for the Districts of Guam and the Northern Mariana Islands are combined, resulting in the 93 USAOs presented in our analysis.
- According to the USA-5 user’s manual, management and administration applies to both criminal and civil matters. However, there is no way to distinguish between criminal and civil matters in the system. As a result, we considered management and administration as its own category.
- The USA-5 system tracks regular time and additional hours separately. Generally, attorneys are not compensated for additional hours they work beyond a 40 hour week. Federal law provides that most federal employees may be compensated only for additional time they work that is officially ordered or approved in writing by a supervisor. Although many Department attorneys work more than 40 hours per week, this additional time is generally not ordered or approved in writing and therefore not compensable. In 1999, a class of over 9,000 DOJ attorneys brought a lawsuit against the Department seeking pay for additional hours of work performed between 1992 and 1999, on the theory that although the additional hours were not approved in writing, the Department had expected and induced the attorneys to work additional time. Their claims were rejected by the United States Court of Appeals for the Federal Circuit. Doe v. U.S., 463 F.3d 1314 (Fed. Cir. 2006), cert. denied, 127 S. Ct. 1910 (2007).
- Individual USAO personnel may record time to more than one activity during the course of a single day, week, month, or year. This means that a single FTE does not necessarily indicate one individual worked an entire year on a single activity; it could mean that 4 employees each worked 25 percent of their time during the year on that specific activity. Yet, in both cases the data would indicate that one FTE was expended on that activity for the entire fiscal year.
- We excluded the additional hours worked by USAO attorneys from this analysis. Therefore, the utilization figures shown in Exhibit 3-4 differ from those presented in Exhibit 3-3.
- According to an EOUSA official, waivers are provided to help when a district experiences a temporary increase in workload by granting additional resources for a specific period of time.