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party on behalf of the United States is unconstitutional because it violates the Appointments Clause or separation of powers doctrine. Four district courts have sustained the constitutionality of the qui tam provisions.

The Department fully supports the provisions of the 1986 amendments and utilizes them to the fullest extent possible. However, when a case is brought by a private plaintiff, the primary motive is probably the amount of damages that the plaintiff will receive, not necessarily the consistent application of the law, the enforcement of the law or the protection of government programs. These functions are vested solely in the Department, and these functions guide our prosecutorial discretion.

In a particular case, the Department's attorneys may find that the qui tam device does not necessarily serve the government's interest or that the same potential result can be accomplished through other means. Each case is different and must be analyzed by the experts in our Civil and Criminal Divisions to determine the most efficacious course of action.

The Department may determine that a particular qui tam suit, even one that may provide a basis for a non-fraud claim by the government against the defendant, may provide insufficient legal or factual grounds for a False Claims Act action. In such a circumstance, it would be consistent with the government's best interest to decline to enter a qui tam case and proceed with a single damage enforcement action that is outside a relator's authority to bring.

In United States of America v. Provident Life & Accident Insurance Company, CIV-1-89-316 (E.D. Tenn.), the Department declined to intervene in the qui tam proceeding, but took no action to dismiss the relator's case and reserved its right, pursuant to the False Claims Act, 31 U.S.C. § 3730 (c) (3), to intervene at a later date. The Department subsequently filed a separate action, pursuant to the Medicare Act and common law, to recover Medicare overpayments from the same defendant. In that case, the United States has not interfered with the relator's effort to prove a fraud case and the filing of our separate statutory action greatly enhances the relator's chance of proving his case. Proof of damages in the relator's case is a substantial burden. The efforts of the United States to prove those damages in its action should relieve the relator from the burden of using his resources for that effort. If the relator is successful, the United States will receive a triple damage recovery less relator's share.

The Civil Division has seen an explosion of new qui tam cases in excess of 225 suits since October 1986, in comparison with perhaps 20 that were filed in the decade preceding the amendments. Approximately 12 of these cases already have

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resulted in recoveries totaling approximately $26 million, of which the relators received over $2.7 million.

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Although I cannot comment in any public forum about the Department's litigation strategy among other reasons, we have seen many times in the past that to do so merely provides defendants with useful information that they can attempt to use against the government thereby increasing our burden in pursuing actions against them I can assure you that the Department has no litigation strategy or policy that seeks to deprive a qui tam plaintiff of his or her recovery if such a recovery is in the best interests of the United States.

During my April 3, 1990, testimony before the Judiciary Committee, you requested information on Border Patrol hiring over the last several years. Also at the hearing, and in your letter of April 4, 1990, you requested the Department's perspective on S. 2250, the Federal Law Enforcement Pay Reform Act of 1990. The following is in response to your queries.

The process of hiring and training large numbers of Border Patrol Agents is complicated. There are many factors involved in bringing on additional agents including access to adequate training facilities, the ability to detail a large number of agents as instructor cadre, the leasing or constructing of building space and the acquisition of equipment to outfit the additional agents. In past years, funding has been provided at times to accomplish portions of the total hiring program, while seldom was the entire package adequately funded. The hiring of additional agents, however, remains a high priority.

Border Patrol budget and staffing levels have increased over the last five years. (I have attached for your reference two charts summarizing Border Patrol hiring over the last several years.) In response to record apprehensions by the Patrol on the southern border in FY 84, Congress authorized in

FY 85 a major staffing increase known as the Southern Border Enhancement package of 850 positions for the Border Patrol to address the influx of illegal aliens crossing the southern border. The Southern Border Enhancement was a major recruiting, hiring and training success for INS, and in FY 86 the Patrol recorded the highest level of apprehensions ever with nearly 1.7 million that year.

A second increase came as a result of the Immigration Reform and Control Act's (IRCA) passage in 1986. The Moorehead Amendment to IRCA mandated a 50 percent increase in Border Patrol staffing, providing 1,608 additional agents and 240 support

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personnel. However, the additional Border Patrol positions were never fully funded, and consequently never filled.

In FY 86 the Border Patrol continued to carry the high personnel levels that began in FY 85. However, the Deficit Reduction Act included a 4.3% cut in the INS budget. This cut came at a very inopportune moment for the Border Patrol, because of its high "on board" strength and the need for additional equipment and facilities to support the increased agent force.

The Border Patrol began adjusting to these constraints in FY 87 and FY 88 by limiting hiring to only nine basic training classes with approximately 432 agents. The on duty agent force began to decrease during FY 87. In FY 88, fourteen basic agent classes were conducted as the on-duty force continued to decline. A second major hiring initiative for the Border Patrol began in early December 1987 in response to criticism for the lack of hiring additional Border Patrol agents as mandated by IRCA. In January 1988, INS sent the Congressional budget request to the Hill in which the Patrol's base budget would increase by $40,967,000 to fund an additional 735 workyears above the FY 88 level. The Patrol planned to schedule 29 classes of 1,392 trainees to be conducted throughout FY 1989.

The

As recruiting and hiring progressed during FY 88, concerns were frequently expressed that there would not be sufficient funds to cover the enhanced hiring initiatives in FY 89. year-long hiring program resulted in the Patrol hiring 1,124 agent trainees from September 1988 to December 1988, thus reaching the highest level of agent staffing ever, with nearly 4,450 agents on board in December 1988.

A hiring freeze was again imposed in February 1989, however, when it was determined that the FY 90 budget would not be sufficient to maintain the existing agent force level. By the end of FY 89, the agent on duty level had dropped to 3,857. The additional $9,000,000 added to the FY 90 Budget by Congress will enable the Patrol to maintain that 3,800 agent level throughout the year. A small increase is projected in the FY 91 agent strength because although 200 positions were added to the Patrol, funding for only 75 workyears was included in the budget. The Border Patrol will be able to hire about 96 additional agents above their attrition in FY 91 based on the 75 funded workyears. It will continue to maximize the use of its available funding in providing the highest level of enforcement staffing possible.

At the April 3 hearing you also requested that we review the Border Patrol vehicle situation in the Southwest. I have asked INS Commissioner Gene McNary to undertake such a review, and he will be in contact with you separately.

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With respect to the Federal Law Enforcement Pay Reform Act, I would add the following. The Department is in the process of reviewing your bill, S. 2250, and its companion, S. 2387, which implement the major recommendations, with certain modifications, of the report of the National Advisory Commission on Law Enforcement (Commission). In establishing the Commission, Congress recognized the need to identify and address the unique aspects of federal law enforcement work, such as long, arduous hours, hazardous conditions, geographic mobility, foreign language requirements, and generally higher rates of pay for nonfederal law enforcement occupations.

We agree that reform is needed in this area. As you may know, the Administration's proposal, the "Federal Pay Reform Act of 1990) was recently forwarded to the Senate. We look forward to working with you over the next few months to effect the needed reforms. Your continued support in bringing about the necessary enhancement to federal law enforcement pay is appreciated.

I hope this answers your questions. If you have further inquiries, please do not hesitate to contact me.

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Dick Thornburgh
Attorney General