The Washington Post ran an interesting little back-and-forth this month. First appeared the July 2 front pager, “A Backlog of Cases Alleging Fraud,” beginning thus:

“More than 900 cases alleging that government contractors and drugmakers have defrauded taxpayers out of billions of dollars are languishing in a backlog that has built up over the past decade because the Justice Department cannot keep pace with the surge in charges brought by whistle-blowers, according to lawyers involved in the disputes.”

[http://www.michaelmoore.com/words/latestnews/index.php?id=11814]

The article reports that, since 2001, 300 or 400 cases filed yearly by corporate whistle-blowers fall into a lengthy and secret administrative process that takes at least 14 months just to indicate whether the Justice Department will involve itself in the cases.

“At issue in most of the cases is whether companies knowingly sold defective products or overcharged federal agencies for items sold at home or offered to U.S. troops overseas. Under the Civil War-era False Claims Act, workers who file lawsuits alleging such schemes cannot discuss them or even disclose their existence until Justice decides whether to step in.”

When the government does agree to take on a case, pursuing it then takes more years:

“Even if no new cases are filed, it might take 10 years for the Department of Justice to clear its desk. Cases in the backlog represent a lot of money being left on the table," said Patrick Burns, a spokesman for Taxpayers Against Fraud, which advocates for Justice to receive more funding to support cases by whistle-blowers and their attorneys.”

The WP article cites among others critics who allege foot-dragging by the Justice Department, a 75-lawyer unit in Justice that “by its own account” is overloaded and understaffed, and Deputy Assistant Attorney General Michael F. Hertz, who testified to Congress that “the number and increased complexity of the fraud schemes presented to the department, combined with the volume of cases now under review, certainly present challenges.”

On July 13, the WP appropriately ran a response by Justice, written by Assistant Attorney General in the Civil Division Gregory G. Katsas, headed “Diligently Pursuing Fraud at Justice.”

The letter to the editor begins,

“The July 2 front-page article "A Backlog of Cases Alleging Fraud" incorrectly stated that 900 cases are languishing in a "backlog." That number represents the active cases under investigation by the Justice Department.”

[www.washingtonpost.com/wp-dyn/content/article/2008/07/12/AR2008071201468.html

There would seem to be some disagreement here on the definition of backlog. Not being a lawyer myself, I would tend to think that several hundred legal matters piling up—and these are according to Katsas the active cases, under investigation—constitute a ‘backlog.’ I think this is the way most lay persons would use the word.

Checking our lawmakers’ use of the word in the U.S. Code, one swiftly gets 40 hits on ‘backlog’ in the laws that govern us. A premier example is “The Debbie Smith DNA Backlog Grant Program,” Sec. 14135 under Title 42, Chapter 136, Violent Crime Control and Law Enforcement.

The law authorizes the Attorney General to disburse grants of public funds to eligible states and local units to support DNA lab analysis of samples from crime scenes.

The law does not state that active cases—crimes currently being investigated—are ineligible for grants because they’re not a backlog. Nor does it state that cases neglected or stymied, thus presumably in a backlog, cannot be further pursued because they’re inactive.

One factor taken into account in allocating grants to states and jurisdictions is “the number of offender and casework samples awaiting DNA analysis in a jurisdiction.”

The meaning of ‘backlog’ in the statute seems to be a given. One segment of the law states,

“The Attorney General may award a grant under this section to a State or unit of local government to alleviate a backlog of cases with respect to a forensic science other than DNA analysis if the State or unit of local government” certifies that a significant backlog of casework is not waiting for DNA analysis, etc; and “demonstrates to the Attorney General that such State or unit requires assistance in alleviating a backlog of cases involving a forensic science other than DNA analysis.”

A previous related statute was called the “DNA Analysis Backlog Elimination Act of 2000.”

Interestingly, the only word defined in the 2000 law is—not backlog—but state, a word carefully specified to include DC, Puerto Rico, American Samoa and Guam.

In the interests of justice, it is to be hoped that the letter to the editor is basically PR, and that no criminal investigation is ever hampered by hairsplitting over what the definition of backlog is. For the Justice Department to try to limit the word too stringently could get scary.

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Reprinted with permission of MargieBurns.com

Margie Burns is a freelance journalist in the D.C. area with a blog at MargieBurns.com.

About author Margie Burns is a freelance journalist in the D.C. area with a blog at Margie Burns is a freelance journalist in the D.C. area with a blog at MargieBurns.com . She can be reached at margie.burns@verizon.net. Reprinted with permission of MargieBurns.com