Detailed Information on the
Department of Labor: Office of the Solicitor Assessment

Conducting an independent program evaluation of sufficient scope and quality to assess the quality and effectiveness of SOL's IT and Litigation Support capacity and capabilities, and recommend appropriate steps to improve them.

Conducting an independent management study of SOL's Legal Office Operations and Support Functions with a goal of identifying areas where possible reengineering and/or process improvements could be beneficial in the overall mission of administrative and legal support services.

Initiating a plan implementing a prioritized set of actions in response to selected recommendations of an independent program evaluation of SOL's IT and Litigation Support capacity and capabilities.

Conducting an independent program evaluation of sufficient scope and quality to assess the quality and timeliness of the legal advice it provides to the Department of Labor.

Improving the management of the Solicitor's administrative budget and displaying budget requests in a more transparent manner.

Based on a recommendation from an independent program evaluation, SOL will review the process by which it provides clients with status and/or updates on pending legal advice, and implement changes as appropriate to improve that process.

Based on a recommendation from an independent program evaluation, SOL will improve the coordination of its response to multiple or related requests for the same legal advice, and implement changes as appropriate to improve that process.

Measure: Percent of favorable outcomes in cases submitted for litigation.

Explanation:The ultimate measure of SOL's litigation contribution to the achievement of the Department's Strategic Goals is its rate of successful outcomes. SOL has established and seeks to maintain a uniquely high rate of success in litigation. SOL's measure in this regard is congruent with that of other major Federal litigation programs. Over time, as SOL's electronic performance data collection systems improve, the agency is committed to exploring other measures that can provide a more dynamic view of the agency's performance trajectory.

Measure: Percent of favorable outcomes, in whole or in part, in appellate matters.

Explanation:The ultimate measure of SOL's contribution to the achievement of the Department's Strategic Goals in appellate matters is its rate of successful outcomes. SOL has established and seeks to maintain a uniquely high rate of success in appellate matters. SOL's measure in this regard is congruent with that of other major Federal litigation programs. Over time, as SOL's electronic performance data collection systems improve, the agency is committed to exploring other measures that can provide a more dynamic view of the agency's performance trajectory.

Measure: Percent of expenditures compared to the total amount of restitution, recoveries, penalties awarded, and monetary claims defeated.

Explanation:The numerator represents resources used to litigate, based on the percentage of FTE dedicated to litigation. The denominator is tracked through SOL's case tracking system that records the results of litigation. Targets from 2002 to 2007 reflect single-year reporting. 2007 Actual and 2008/2009 targets reflect the adjustment to a five-year trailing average due to significant annual variations in results.

Measure: Percent of cases submitted for litigation and appellate matters that successfully establish/defend an important legal principle.

Explanation:Black's Law Dictionary defines the term "important legal principle" as "a comprehensive rule or doctrine which furnishes a basis or origin for others: a settled rule of action, procedure, or legal determination." Examples of "important legal principles" include: whether an employer is covered by a particular labor law provision; the application of a statute of limitations or other defense to a labor law claim; interpretation of regulations; issues of first impression in the application of a statute; and the means of calculating damages. To measure the success of this goal, a 10% statistical sample of all closed cases is created. SOL attorneys and paralegals then review each identified closed case to determine whether the case meets the "important legal principle" standard.

Measure: Percent of final rules in which major provisions are not successfully challenged.

Explanation:A "major provision" of a final rule is any portion of a final rule that is essential to its design; necessary to its implementation, interpretation, or which prescribes the organization, procedure or practice of an agency. The ultimate measure of SOL's contribution to the achievement of the Department's Strategic Goals in the development and issuance of final rules is the rate of final rules that are not successfully challenged. If there is no challenge to the rule or if a rule is successfully defended by SOL, then SOL's legal advice and assistance has been effective. SOL has established and seeks to maintain a uniquely high rate of success defending challenges to final rules. Over time, as SOL's electronic performance data collection systems improve, the agency is committed to exploring other measures that can provide a more dynamic view of the agency's performance trajectory.

Measure: Average number of legal opinions/advice issued per FTE.

Explanation:This measure tracks efficiency by comparing the total number of legal opinions and advisories issued with the number of FTE devoted to that function. Indicator targets beyond FY 2006 reflect a change in methodology; SOL now uses a trailing average of the number of legal opinions and advice issued per FTE per year over the past five years. The new method is not dependent on the experience of just one previous year, which (as the past three years reflect) can change significantly based on changes in the mix of cases being received, as well as because of particular efforts to clear the case management system of cases that have not been closed. The five year average is more ambitious than the repetitive 75% target that had been used, because the target benchmark must respond to actual experience, rather than being artificially set at an unchanging target level.

Is the program purpose clear?

Explanation: The Office of the Solicitor's (SOL) mission is to meet the legal service demands for the Department of Labor (DOL). SOL's three main functions are to 1) provide legal advice, 2) review regulations, and 3) represent the Secretary of Labor in legal proceedings. For example, SOL provides legal advice, reviews regulations and legislative proposals, and assists in preparing testimony and comments on regulations and legislation that affect agencies within DOL. SOL also provides legal advice on labor issues to other federal agencies, including the Office of Management and Budget and Congress. In addition, SOL decides which legal cases are appropriate for enforcement proceedings. SOL represents the Secretary of Labor and DOL agencies in all legal proceedings and in all federal courts, except the Supreme Court, in cases arising under statutes giving attorneys for the Secretary of Labor independent litigating authority. SOL also assists the Department of Justice (DOJ) in conducting litigation under statutes that provide DOJ with sole litigating authority.

Evidence: The Office of the Solicitor for the Department of Labor was transferred from the Department of Justice to DOL by Executive Order 6166 on June 10, 1933 (Organization of Executive Agencies; Sec. 7 - Solicitors). In 1940, Secretary of Labor Francis Perkins signed an Administrative Order consolidating all attorneys and other legal personnel into the Solicitor's Office (Administrative Order Placing all Personnel in the Department of Labor Employed in the Capacity of Attorneys or Engaged in Legal Work Under the Solicitor of Labor, June 6, 1940). Since this consolidation, SOL has been responsible for providing legal advice and conducting litigation relating to nearly 200 statutes administered or enforced by DOL. Numerous Secretary's Orders have assigned responsibility to SOL for providing legal advice related to those statutes. See, for example, Secretary's Order 05-2002, October 22, 2002 (OSHA) http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=17428; Secretary's Order 5-96, 62 Fed. Reg. 107 (Jan. 2, 1997); http://www.oalj.dol.gov/PUBLIC/WHISTLEBLOWER/REFERENCES/FEDERAL_REGISTER/SO596.HTM; Secretary's Order 1-2005 (June 1, 2005) (EEOICPA Ombudsman) http://www.labornet.dol.gov/DCS_FileSystem/SecretaryOrders/01-2005.htm; Secretary's Order 03-2006, January 17, 2006 (BRB), 71 FR 4220-01; Secretary's Order 07-2005, December 19, 2005 (FTCA); Secretary's Order 3-2004, September 16, 2004 (ASVETS), 69 FR 55930-01; and Secretary's Order 4-2001, May 31, 2001 (ESA), 66 FR 29656-01. Statutes providing independent litigating authority for attorneys appointed by the Secretary of Labor include the Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. 921a, http://www.oalj.dol.gov/PUBLIC/LONGSHORE/REFERENCES/STATUTES/LHWCA.HTM; the Occupational Safety and Health Act of 1970, (OSH Act) 29 U.S.C 663; the Black Lung Benefits Act, (BLBA) 30 U.S.C. 932(a) http://www.oalj.dol.gov/PUBLIC/BLACK_LUNG/REFERENCES/STATUTES/30_CONT.HTM; the Employees Retirement Insurance Security Act (ERISA), 29 U.S.C. 1132(jhttp://www4.law.cornell.edu/uscode/html/uscode29/usc_sup_01_29_10_18.html); and the Federal Mine Safety & Health Act of 1977, (Mine Act) 30 U.S.C. 112, http://www.msha.gov/REGS/ACT/ACT2.HTM. DOL also has entered into a Memoranda of Understanding with the Department of Justice regarding cooperation between the two agencies with respect to litigation under various labor statutes.

Does the program address a specific and existing problem, interest, or need?

Explanation: Without the legal expertise of the Office of the Solicitor (SOL), the Department of Labor (DOL) could not enforce citations, issue regulations, or accomplish its mission. As a result of a Secretary's Order signed by Secretary of Labor Frances Perkins in 1940, DOL agencies do not directly employ their own attorneys to conduct core legal activities, such as litigation. SOL provides all legal advice and representation for the Department of Labor on the nearly 200 labor laws enforced by DOL. These laws cover issues such as workplace safety and health, wages and work hours, equal employment opportunity, agricultural workers, foreign workers, veterans' protections, retirement and health benefits, and whistleblower protections. SOL represents DOL in all court matters, including complaints filed with Administrative Law Judges and courts, and defending regulations issued in the Federal Register in court.

Evidence: In FY 2005, SOL attorneys participated in over 30,000 litigation matters, concluding 15,646. During the same period, SOL worked on over 300 regulatory matters, concluding 117. Throughout FY 2005, SOL provided legal advice to DOL agencies on a daily basis, and concluded work on 6,154 discrete requests for legal advice. This activity was conducted pursuant to the many statutes enforced by DOL that explicitly, or implicitly, rely upon the support of attorneys, including: the Mine Act, 30 U.S.C. 811(d), 815, 816,818, 820(j); the BLBA, 30 U.S.C. 934;the LHWCA, 33 U.S.C. 918, 921(c), (d), 927(b); the OSH Act, 29 U.S.C. 655(f), 659(c), 662(a), (b), 663, 666, 667(g); the Surface Transportation Assistance Act, 49 U.S.C. 31105(c), (d); the Fair Labor Standards Act, 29 U.S.C. 216; the Social Security Act, Title IX, 42 U.S.C. 504; the Federal Unemployment Tax Act, 26 U.S.C. 3310; the Trade Act of 1974, 19 U.S.C. 2395; the Workforce Investment Act of 1998, 29 U.S.C. 2937, 2938; the Uniform Service Employment and Reemployment Rights Act, 38 U.S.C. 4323, 4324; ERISA, 29 U.S.C. 1109, 1132; the Federal Employees Retirement Security Act, 5 U.S.C. 8477; the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 440; the Civil Service Reform Act, 5 U.S.C. 7120(d); the Rehabilitation Act, 29 U.S.C. 793(b), 795(a); and Executive Order 11246. See also Administrative Order Placing all Personnel in the Department of Labor Employed in the Capacity of Attorneys or Engaged in Legal Work Under the Solicitor of Labor, June 6, 1940.

Is the program designed so that it is not redundant or duplicative of any other Federal, state, local or private effort?

Explanation: Since attorneys in the Office of the Solicitor (SOL) are involved in making political and legal decisions regarding litigation and regulations for the Department of Labor (DOL), no State, local, or private litigating agency could provide this inherently governmental legal support. Other than the Department of Justice and a few other agencies, SOL is a fairly unique federal legal entity since it has legal authority to litigate cases in court as well as to provide legal advice. Most General Council offices in the federal government only have legal authority for the latter. Historically, the legal workloads of federal legal organizations have been regulated to prevent redundancy and duplication of effort. In situations where the legal division of labor has not been clear, SOL has negotiated the division of responsibilities. For example, SOL has entered into Memoranda of Understanding with the Department of Justice (DOJ) regarding cooperation and jurisdiction between the two agencies with respect to litigation under various labor statutes. In legal cases where the Attorney General or Solicitor General has sole litigating authority; SOL is the conduit between DOL and DOJ. SOL attorneys provide assistance that enables DOJ to provide effective representation in cases arising under statutes for which DOJ attorneys do not have specialized expertise.

Evidence: As set forth in the Department of Labor Manual Series (DLMS), "The Office of the Solicitor (SOL) handles the legal activities of the Department, including the preparation of legislative proposals and testimony on pending legislation. The SOL also provides trial litigation and general legal services in connection with statutes and programs administered by the Department of Labor." DLMS 10 - Organizational Management, Ch. 1000. For information on the history of the division of labor between federal legal entities, see Donald Horowitz, The Jurocracy (Toronto: Lexington Books, 1977), Chapter 2 "A Division of Labor and A Divorce of Functions," pp. 5-25; and "Presenting the Case of the United States As It Should Be: The Solicitor General in Historical Context," by Seth Waxman, Solicitor General of the United States, June 1, 1998 (http://www.usdoj.gov/osg/aboutosg/sgarticle.html). DOL has entered into a Memoranda of Understanding with the Department of Justice regarding cooperation between the two agencies with respect to litigation under various labor statutes.

Is the program design free of major flaws that would limit the program's effectiveness or efficiency?

Explanation: The Office of the Solicitor (SOL) at the Department of Labor (DOL) has a centralized structure. There is no evidence of major design flaws or indication that a different design would be more effective. SOL's centralized structure allows attorneys to easily share policy and legal information. Since SOL attorneys work with agency staff, they are knowledgeable about the agency's policies, practices, and goals. In addition, SOL attorneys provide agencies an independent assessment of the validity and legality of policies and actions. In legal cases in which the Department of Justice has litigating authority, SOL attorneys provide specialized knowledge of the labor issues related to these cases.

Evidence: No legislative initiatives or studies suggest major flaws in the mission or organization of SOL. Several statutes provide litigating authority to attorneys representing the Secretary; since 1940 such attorneys have been under the supervision of the Solicitor.

Is the program design effectively targeted so that resources will address the program's purpose directly and will reach intended beneficiaries?

Explanation: The Office of the Solicitor (SOL) has two intended beneficiaries: its client agencies--the program agencies of the Department of Labor, and the public served by those agencies. SOL has about 460 attorneys, equally split between the national office and regional and branch offices. SOL has eight regional offices, and six branch offices located around the country. The regional offices are located in cities that correspond with the regional offices of SOL's client agencies. Resources are routinely shared across division lines in order to meet pressing needs of DOL client agencies.

Evidence: SOL's organization charts at http://www.dol.gov/sol/noorg.htm and http://www.dol.gov/sol/roorg.htm evidence SOL's organizational structure.

Does the program have a limited number of specific long-term performance measures that focus on outcomes and meaningfully reflect the purpose of the program?

Explanation: As noted in Q 1.1, the Office of the Solicitor's (SOL) mission is to provide legal advice, review regulations, and litigate cased pertaining to Federal labor laws. SOL has established four long-term outcome measures that cover two of its three core areas and meaningfully support the program's purpose: Percent of favorable outcomes submitted for litigation; Percent of favorable outcomes, in whole or in part, in appellate matters; Percent of expenditures compared to total amount of restitution, recoveries, penalties, and monetary claims; and Percent of final rules in which major provisions are not successfully challenged. Although performance in the arena of providing sound legal advice is more difficult to measure, SOL should establish a third outcome measure for this function. SOL's outcome measures are included in the FY 2007 Department of Labor Congressional Budget Justification.

Evidence: Office of the Solicitor, FY 2007 Budget Justification

Does the program have ambitious targets and timeframes for its long-term measures?

Explanation: SOL set baselines for its performance goals in 2002 and has established targets for each year through 2007. While the targets were originally viewed as ambitious, SOL routinely exceeded the targets for many goals. Accordingly, in 2005, SOL revised certain targets to more ambitious levels. For example, SOL's target for successfully defending or prosecuting cases in litigation, and for obtaining a favorable outcome on appeal, was set at 75% from 2002 to 2004. Because SOL regularly exceeded those targets, achieving successful outcomes in cases both at the trial and appellate levels in 95% or more of its cases, SOL adjusted the relevant targets in 2005 to 95-98% for trial litigation. The targets although relatively constant, reflect the fluctuations in SOL's caseload, staffing and increased work associated with implementing new initiatives and programs.

Evidence: Office of the Solicitor, FY 2007 Budget Justification

Does the program have a limited number of specific annual performance measures that can demonstrate progress toward achieving the program's long-term goals?

Explanation: The Office of the Solicitor's (SOL) annual measures are the same as its long-term outcome measures discussed in Q 2.1. These measures track SOL's performance in providing representation in litigation and settlement efforts. SOL will work toward establishing an annual outcome measure regarding its core function to provide legal advice and opinions, which advance the goals, policies, and positions of the Secretary and the client agencies.

Evidence: Office of the Solicitor, FY 2007 Budget Justification

Does the program have baselines and ambitious targets for its annual measures?

Explanation: SOL set baselines for its performance goals in 2002 and has established targets for each year through 2007. As explained in response 2.2, these targets although relatively constant are ambitious because of the changing nature of SOL caseload and the internal and external factors that make it challenging to meet the targets each year. Statutory changes and programmatic initiatives place new burdens on SOL attorneys, which must be borne without diminishing services necessary for enforcement proceedings and initiatives already in place.

Evidence: Office of the Solicitor, FY 2007 Budget Justification

Do all partners (including grantees, sub-grantees, contractors, cost-sharing partners, and other government partners) commit to and work toward the annual and/or long-term goals of the program?

Explanation: SOL is a full partner with DOL program agencies in designing and implementing initiatives to meet the Secretary's goals. Because SOL provides legal support for all programs, its goals are more functionally based to ensure SOL's versatility and flexibility. SOL must also maintain strong relationships with officials at the Department of Justice, U.S. Attorneys, the National Institute of Occupational Safety and Health, and various other government agencies. SOL continues to work on establishing clear commitments with its client agencies within DOL and its other legal partners to work toward a set of common program goals.

Evidence:

Are independent evaluations of sufficient scope and quality conducted on a regular basis or as needed to support program improvements and evaluate effectiveness and relevance to the problem, interest, or need?

Explanation: The Office of the Solicitor has not conducted independent evaluations on the effectiveness of its three core functions. During FY2006, however, SOL will have an objective, independent evaluation performed by an outside contractor on the efficacy of its legal advice. This evaluation should provide SOL with better quantitative measures of the timeliness and accessibility of its legal advice to its client agencies and the Secretary of Labor. To receive a yes for this question, evaluations must be independent, of high quality and sufficient scope, and conducted on a regular basis.

Evidence: Statement of Work for the Efficacy of Legal Advice.

Are Budget requests explicitly tied to accomplishment of the annual and long-term performance goals, and are the resource needs presented in a complete and transparent manner in the program's budget?

Explanation: The Office of the Solicitor (SOL) ties its budget requests to program performance. However, the costs associated with the auxillary services SOL provides DOL's client agencies are not easily transparent. SOL's Congressional Budget Justification does not clearly articulate or identify which auxillary services are financed by the client agencies. The FY 2006 (and prior year) funding levels were premised on the legal and auxillary services traditionally performed within SOL's appropriated resources. However, during the last two quarters of FY 2006, SOL notified Congress of a new reimbursement plan that was needed in order to ensure criticial auxillary servies would continue without interruption. SOL is currently reviewing data from DOL's activity based cost accounting system, the Cost Analysis Manager (CAM), that is now available to examine and reassess the cost and benefit of pursuing certain types of cases in certain locations and to identify and share best practices and will refine its use of this data for future budget justifications.

Evidence: FY 2007 Departmental Management--Congressional Justification, pp. 86-91.

Has the program taken meaningful steps to correct its strategic planning deficiencies?

Explanation: The Office of the Solicitor has determined that two deficiencies inhibit its ability to plan strategically. First, SOL has not conducted independent evaluations of it core legal functions. To address this issue, SOL has hired an independent contractor to perform an evaluation on the efficacy of its legal advice. Work on this evaluation began in the spring of 2006. Secondly, although SOL has good information about the time that attorneys and paralegals spend on each assignment and type of work, the information would be more accurate if it were recorded more uniformly throughout SOL and if additional information were recorded. Accordingly, following the reorganization of the National Office, SOL assembled a team of senior SOL managers to review SOL's time distribution system and make recommendations to ensure the data was more accurate and reliable.

Evidence: Statement of Work - Efficacy of SOL Legal Advice.

Does the agency regularly collect timely and credible performance information, including information from key program partners, and use it to manage the program and improve performance?

Explanation: SOL collects credible performance information on a regular basis in a variety of ways, and also collects specific information as it becomes available. On a weekly basis, SOL regional offices and program divisions prepare an activity report that is reviewed by senior managers and compiled into an SOL-wide report that is forwarded to the Solicitor, as well as to key agency heads, for review, and made available to all SOL employees. This report, in addition to providing information about significant developments anticipated in the following week, provides ongoing information about performance and accomplishments throughout SOL. This information is used to ensure close coordination between national and regional office employees with respect to specific programs and initiatives and to keep attorneys abreast of developments relevant to their own performance. The report is used by the Solicitor and other senior managers to monitor performance and triggers either praise or additional questions, as appropriate. In addition, the Deputy Solicitor and the Deputy Solicitor for National Operations meet with SOL Division heads on a biweekly basis to review both performance and developments in important matters. All SOL office heads meet once a week (with regional solicitors participating by telephone) to share information about important developments and issues of interest to the entire office. Virtually every SOL office head also meets regularly with their counterparts in DOL program (or "client") agencies to review SOL performance and to assess future needs based on the resources that will be required for client initiatives. Each SOL employee is appraised annually under performance standards, each of which is linked to specific DOL and SOL goals. Senior executives and managers are also appraised under specific performance agreements that are linked to DOL and SOL goals. Information collected in various SOL reports is all available to validate and support performance appraisals and performance awards. SOL also collects a variety of statistical data in order to measure the resources used to achieve its goals. Each attorney and paralegal outside the Senior Executive Service (SES) records time spent on specific activities in 15 minute increments. A report is forwarded to SOL managers on a monthly basis indicating the 20 projects in their office to which the most time was recorded, as well as information regarding the time recorded by each attorney and paralegal and the project or case on which the time was spent. SOL managers use these reports to assess whether appropriate amounts of time are being allocated to specific projects and to determine if reassignments would improve performance in specific situations. The same data is collected for all of SOL and used to build CAM models that depict workload and performance data in visual charts that facilitate comparisons between offices and help to identify best practices in terms of timely, efficient, and low cost performance. SOL is currently in the process of revising its timekeeping methods to ensure that the data collected is as accurate as possible and to ensure uniformity in the way in which time is reported. In addition, SOL is currently embarking on a pilot test of new eJudication software that will make it substantially easier to track performance, time spent on specific activities, and the actual progress of each assignment based on information input over the Internet by each attorney and paralegal, with the opportunity for real-time review by supervisors.

Evidence: Samples of a Senior Executive performance plan, a sample manager's performance plan, and employee's performance plan, as well as a chart showing the linkage between SOL Standards and Goals, are attached.

Are Federal managers and program partners (including grantees, sub-grantees, contractors, cost-sharing partners, and other government partners) held accountable for cost, schedule and performance results?

Explanation: Performance plans for all SOL Senior Executives and managers (as well as all staff) clearly document linkages between individual performance standards and both DOL and SOL performance goals. SOL contracts with BPX Technologies, Inc., for litigation support services. Numerous contractual provisions specify the performance expected, the timetable for the performance, and the cost expectations. In addition, each contract provides for SOL and BPX to implement a "Quality Assurance Plan," which includes quarterly assessments of BPX's performance. In order to achieve a rating of "Excellent," BPX must provide exemplary performance in a timely, efficient, and economical manner. A "Very Good" rating requires that performance be fully responsive to the contract and that contract requirements be accomplished in a timely, efficient, and economical manner for the most part. SOL also works closely with other government agencies, both in and outside DOL, to achieve mission objectives. Where, for example, litigation is conducted on behalf of DOL by U.S. Attorneys, SOL monitors that litigation activity in order to offer assistance if necessary and to remind DOJ attorneys of the importance of DOL cases. SOL managers meet frequently with client agency officials, both in the National Office and in the regions, in regularly scheduled meetings to make recommendations to improve the quality of investigations and to improve the potential for successful litigation.

Evidence: SOL sample Senior Executive performance plan and sample manager's performance plan. SOL contracts with BPX Technologies, Inc.

Are funds (Federal and partners') obligated in a timely manner, spent for the intended purpose and accurately reported?

Explanation: Appropriated funds are routinely obligated in a timely manner and 77-79% of such funds are spent on Salary and Benefits. The remaining funds are spent on infrastructure needs to support the work of the office (e.g., travel, equipment, supplies, and Working Capital Fund assessments). SOL's spending is closely and centrally monitored. Each National Office Division and regional office is provided an operating budget and spending is reviewed on a quarterly basis with SOL's Budget Officer. DOL's Office of Administration and Management (OASAM) provides financial processing services for SOL. They serve as an independent review of all obligations made by SOL and are responsible for ensuring that obligations are timely and accurate. SOL also receives funds from its client agencies through reimbursable accounts directed to specific programs including Fair Labor Standards Act (FLSA) civil money penalties, Federal Employees' Compensation Act (FECA) subrogation, and Energy Employees Occupational Illness Compensation Program Act (EEOICPA). These funds are used directly and only in the provision of services for the programs providing the funds. Additionally, SOL obtains funding from its client agencies for certain aspects of litigation being conducted by SOL. Specifically, when a case requires the services of an expert witness not on the payroll of the agency, the resources necessary to compensate the expert are provided by the client. Also, when a client identifies or develops a case of such size and complexity as to require extraordinary diversion of resources for contractor litigation support, deposition-related expenses, or attorney travel, after appropriate approvals the client funds those expenses. Again, client funds provided to SOL in this manner are used only in support of the designated client litigation. SOL has had no Anti-Deficiency Act violations and closes each fiscal year with a minimum of lapsed funding, continuing to meet all funding deadlines imposed at closeout. SOL has no outstanding audit issues.

Evidence: DOLARS FY 2005 Close-out (D133D 9-30-05).

Does the program have procedures (e.g. competitive sourcing/cost comparisons, IT improvements, appropriate incentives) to measure and achieve efficiencies and cost effectiveness in program execution?

Explanation: SOL uses an efficiency measure that compares SOL's litigation costs to the amount of money recovered as a result of the litigation. The amount of money recovered consists of restitutions, recoveries, penalties and the value of monetary claims against the government that are defeated. The goal pursuant to this measure is to maximize the dollar recovery SOL achieves through litigation and pre-litigation negotiations (the ratio's denominator), while minimizing the amount spent to achieve these results (the ratio's numerator). For example, if SOL recovers $100 and spends $50 in order to achieve that recovery, the ratio would be 50 divided by 100 or .50 (50%). SOL has set this target at 50% for FY 2006, 49% for 2007, and 48% for 2008. In 2008, SOL will begin the process of competitive sourcing for its legal technicians and paralegals, beginning with a study to determine the most efficient operation for obtaining these services. SOL contracts out the development and support of its management information systems and desktop hardware support. These contracts are performance-based contracts that include performance metrics.

Evidence: Explanation of Efficiency Measure (Goal 1.3); SOL Target Architecture; SOL Transition Sequencing Plan; SOL Contracts; IT Strategic Plan (http://www.dol.gov/cio/programs/ITStrategicPlan2006/IT-Strategic-Plan.htm); Secretary's Order 2-2005 (September 30, 2005) http://www.labornet.dol.gov/DCS_FileSystem/SecretaryOrders/OPA-Final-SO-ECI-9-13-05.htm.

Does the program collaborate and coordinate effectively with related programs?

Explanation: SOL is one of five DOL legal agencies participating in the eJudication project. This is a collaborative IT initiative focused on creating: ?? A web-based government-to-citizen communication tool providing an interactive, comprehensive website for providing information on matters involving status of cases and/or appeals, links to relevant statutes, regulations, and procedures which will give citizens an opportunity to file their cases online, search and find relevant case law, and enable them to utilize FAQs regarding filing cases and appeals at the DOL; ?? A shared, fine-tuned case tracking, management and production information system, including a comprehensive case tracking system and time distribution system (a legal time keeping system) to monitor and assess performance of both staff and workflow; and ?? An intranet website structure to facilitate communication for staff both on location at DOL, and off-site, due to travel, illness, or flexiplace work agreements. This platform will provide staff the capability for accessing reference materials, e-mail, and other intra-office communications while on and off-site. SOL is currently setting up the first pilot of the Web-based case management system. SOL also collaborates with all DOL client agencies, as well as with other federal agencies, including DOJ, the Office of Special Counsel (OSC), the EEOC, and U.S. Attorney's offices on specific cases and on broader initiatives. SOL meets regularly with its DOL client agencies to review investigatory files to determine whether a case is sufficiently developed to warrant referral to SOL for litigation. SOL's Civil Rights and Labor Management (CRLM) Division meets regularly with staff of the Office of Labor Management Standards (OLMS) to review LMRDA cases investigated by OLMS field offices to determine whether the case should be referred to DOJ for litigation. SOL's Employment and Training Legal Services (ETLS) Division staff consults regularly with the DOJ and OSC offices that litigate cases referred by DOL under USERRA, both to share best practices and to ensure that consistent legal theories are agreed upon by the agencies concerned. In cases filed with the Supreme Court that raise labor and employment issues, the Office of the Solicitor General (SG) frequently requests the views of the Solicitor and SOL lawyers meet frequently with the SG and his staff to discuss cases that are of interest to DOL.

Evidence: Target Architecture; Project Management Plan for eJudication. Memoranda of Understanding.

Does the program use strong financial management practices?

Explanation: SOL needs to revise its financial management practices to ensure the proper control measures and procedures are in place to effectively administer program funds. During the second quarter of FY 2006, SOL notified Congress of a new reimbursement plan that was needed in order to avoid furloughs and ensure critical auxillary servies to DOL's client agencies would continue without interruption. This action raised serious concerns about the adequacy of SOL's financial management practices. While client agencies have occasionally reimbursed SOL for some auxillary services, SOL informed Congress that an additional $4 million in reimbursable authority was needed to support core legal and non-legal services in 2006. Further review of SOL's proposal, implementation and cost methodolodgy will take place during the 2008 Budget formulation.

Evidence: Examples of HAST Report and eProperty report.

Has the program taken meaningful steps to address its management deficiencies?

Explanation: In January 2005, the Solicitor initiated a complete review of the organization and structure of SOL in order to determine whether services could be delivered in a more effective or efficient fashion. As a result of this review, the Solicitor made significant changes: revising the structure of SOL's National Office, moving from ten programmatic divisions and a separate Administrative Office to eight divisions more closely aligned with client agencies, plus a single Management and Administrative Legal Services Division that combines the administrative functions necessary for SOL with the legal services related to those functions for SOL and the Department as a whole. The reorganization eliminated duplicative activities, moved certain high level functions to the Immediate Office of the Solicitor, and consolidated services for client agencies within single divisions. This restructuring also enabled SOL to eliminate an SES position, returning the allocated position to the Department and reducing SOL's costs.

Evidence: On February 1, 2005, the Solicitor announced restructuring changes and a long-term strategy for SOL.

Has the program demonstrated adequate progress in achieving its long-term performance goals?

Explanation: This program has long term and annual performance measures that are the same (i.e., the long term measure is also tracked on an annual basis). Meeting the annual goals constitutes progress toward achieving long term goals as well. SOL's long-term goals are to ensure the continuing excellence of legal representation so that our litigation strategy advances DOL goals, DOL regulations withstand challenges, and DOL actions are based on sound legal advice. SOL has demonstrated progress toward achieving its long-term goals through achieving or substantially achieving nearly all of its annual goals. The recent revisions to SOL's performance measures will provide an even better picture of its performance against its long-term goals. SOL is also refining the methods by which it obtains the data used to measure performance to enhance the accuracy and relevance of the information.

Evidence: Performance Goal Results Chart 07

Does the program (including program partners) achieve its annual performance goals?

Explanation: In FY 2005, SOL achieved, or substantially achieved, all but three targets for performance indicators. The three targets not achieved included two new indicators added in FY 2005 to better measure performance with respect to the accomplishment of major program objectives ("Successfully establish/defend an important legal principle in 75% of cases submitted for litigation and in 75% of appellate matters" and "The major provisions of final DOL rules are not successfully challenged 95% of the time.") and an indicator revised in FY 2005 to measure efficiency rather than simply count matters worked on ("Issue an average of 165 legal opinions/advice per FTE devoted to that function.") SOL provides legal support for all DOL programs, and thus plays an integral role on the achievement of their goals.

Evidence: Performance Goal Results Chart 07; DOL 2006 Performance Budget http://www.dol.gov/_sec/Budget2006/overview-pb.htm; DOL 2005 Annual Report http://www.dol.gov/_sec/media/reports/annual2005/SG1.htm.

Does the program demonstrate improved efficiencies or cost effectiveness in achieving program goals each year?

Explanation: In the past three years, SOL took a number of steps to improve efficiencies and better utilize all available funding. SOL management made a successful effort to encourage employees to consider the entire organization as "one SOL," implementing greater consultation between and among senior managers, and encouraging movement, on a permanent or temporary basis, between offices in order to shift resources in response to changing needs. SOL invested in human capital to recruit and train talented attorneys, made improvements to SOL's grade structure, and made technological advances that enable the workforce to be more productive in less time. These measures have positioned SOL to continue to meet the needs of DOL agencies and programs that have grown substantially, and to continue to respond to relatively stable workload demands, during a period in which SOL's own FTE complement has been substantially reduced through attrition. SOL uses an efficiency measure that captures SOL's efforts to reduce litigation costs compared to the amount of money it recovers as a result of the litigation. The amount of money recovered consists of restitutions, recoveries, penalties and the value of monetary claims against the government that are defeated. The goal pursuant to this measure is to maximize the dollar recovery SOL achieves through litigation (the ratio's denominator) while minimizing the amount spent to achieve these results (the ratio's numerator). A reduced percentage represents greater efficiency. For FY 2004, SOL's results for this indicator were 38.9%. In FY 2005, SOL further reduced the ratio of litigation costs to money recovered to 28.8%. SOL has also partnered with the Office of Administrative Law Judges and the Adjudicatory Boards to pilot an "e-judication" program that will make information more readily available to all SOL attorneys through a web-based case management system that is expected to be live in 2007.

Evidence: eJudication Executive Brief; http://www-test.dol.gov/arb/ejudication/; 2001-2007 Workload Tables.

Does the performance of this program compare favorably to other programs, including government, private, etc., with similar purpose and goals?

Explanation: SOL's success rate in litigation is testimony to its favorable performance compared to litigators in private practice. The Department of Justice and offices of U.S. Attorneys provide ready frames of reference because, like SOL, DOJ and the U.S. Attorneys represent client agencies under a number of statutes. SOL's success rate compares favorably to that of both DOJ and the U.S. Attorneys. In each year since 2002, SOL has obtained a favorable outcome in whole or part in over 95% of cases litigated and in 98% of appellate matters. During 2003 - 2005, DOJ General Legal Activities reported 84-87% of civil cases favorably resolved and 91-92% of criminal cases favorably resolved. For the same period ,the U.S. Attorneys reported that they favorably resolved 83-85% of their civil cases and 90-92% of criminal cases. SOL's work is also well-respected by attorneys at the Department of Justice and in other agencies with whom SOL attorneys partner on a regular basis. In addition, Congress provided litigating authority to DOL under a number of different statutes (e.g., LHWCA, BLBA, MSHA, ERISA) and the Solicitor General frequently requests that SOL provide an opinion regarding the government's interest in particular cases.

Evidence: U.S. Attorneys Program Performance Measures, Percent of Civil Cases Favorably Resolved, http://www.whitehouse.gov/omb/expectmore/detail.10002208.2005.html; Department of Justice General Legal Activities Assessment, Percent of civil cases favorably resolved, http://www.whitehouse.gov/omb/expectmore/detail.10003800.2005.html.

Do independent evaluations of sufficient scope and quality indicate that the program is effective and achieving results?

Explanation: SOL's operations have been subjected to only limited formal independent evaluation. The evaluations that have been conducted by DOL's CFO have found no deficiencies in SOL's financial management practices. SOL has successfully requested Departmental funding to secure an objective, independent evaluation of the validity of SOL legal advice and to determine whether improvements should be made. This evaluation began in the Spring of 2006.

Evidence: SOW: Efficacy of SOL Legal Advice.