Answer 11(a): Approximately 70 of the 300 Presidential appointees and former government employees referenced in the answer to Question 11, are being retained by private counsel retained by the Department.

Question 11 (b):

Approximately what percentage is this of all of the Constitutional Tort cases in which private counsel have been retained?

Question 11(c): If the number and percentage of Presidential appointees and former employees being represented by private counsel is small, then wouldn't the Department's cost problems in hiring private counsel largely be solved by immunizing present employees who are not Presidential appoint

ees?

Answer 11 (c): As can be seen by the answer to Question 11(b), the cost of providing private counsel for Presidential employees and former government employees represents a substantial portion of the overall cost of the Department's private counsel program.

ATTORNEY GENERAL CERTIFICATION

Question 1: Under section 5 of the bill the Attorney General must certify whether a defendant employee in a constitutional torts case was "acting within the scope of his office or employment or under the color thereof, at the time of the incident out of which the suit arose... For a common-law tort case the Attorney General must certify whether a defendant employee was "acting within the scope of his office or employment..."

How does the Attorney General determine whether a case involves a constitutional or a common law tort?

Answer 1:

The United States will substitute itself for all constitutional torts and most common law torts except for those defined by 28 U.S.C. $2680. In determining whether or not an employee was acting within the scope of his duties or under the color of his office, that determination must be made upon an examination of the facts in each

particular case as it is under existing law.

Question 2: Under which standard does the Attorney' General make a certification if a complaint alleges both constitutional and common law torts?

Answer 2: Certification is the process by which the Attorney General determines whether to substitute the United States for the purpose of removing a suit from state court to federal court. It does not involve a determination of whether a complaint alleges a constitutional or a common law tort.

Nevertheless, in making a determination of whether a constitutional or common tort has been alleged, the Attorney General must rely on the underlying facts presented by the complaint.

Question 3: Is it of any relevance in making a certification in a constitutional tort case that the defendant employee has been indicted or convicted of a crime related to the subject matter of the tort case, and if so, describe such relevance?

Answer 3: No.

The certification as noted in the answer to Question 2 above, is not a determination but rather a statement that the employee was acting within the scope of his employment or under the color of his office.

Question 3(a): Please answer the same question with respect to a common-law tort case.

Answer 3 (a): With respect to a common-law tort, we have never yet made a determination that conduct which is criminal and for which a federal indictment or conviction has resulted and which conduct also forms the basis of a civil suit, is conduct within the scope of an employee's office or employment.

Question 4: Please provide a list of cases or other precedent which describes the technical meaning of "color" of authority.

Answer 4: There are many cases in the civil rights area which discuss color of authority. See e.g. Screws v. United States, 325 U.S. 91, 111 (1945); Monroe v. Pape, 365 U.S. 167, 172 (1961). It is our intention, broadly speaking, that if a government employee commits a tortious violation of a person's constitutional rights, and does so under the guise of his federal office, whether or not within the scope of his federal employment, that the United States would be responsible.

Question 5: When a District Court is making a determination on a motion to remand whether an employee was acting under "color" of office, to what precedent can it turn?

Answer 5: There is ample federal case law discussing color of office in other contexts which the District courts utilize.

FURTHER NEED FOR PRIVATE COUNSEL

Question 1: of the individuals who have been represented by private counsel retained by the Department, what percentage were:

(a) (b)

(c)

"targets" of criminal investigations;
had a conflict with other defendants;

wished to raise legal arguments not in the interest
of the United States to assert, respectively?

Answer 1: We are unaware of any cases in which private counsel are currently being retained for defendants who are "targets" of federal criminal investigations. Of the approximately 90 defendants for whom private counsel are retained, 9 instances involve reason (c) only [desire to raise a legal argument not in the interest of the United States to assert), 20 instances involve reason (b) alone [conflicts with other defendants), and the balance involve a combination of reasons (b) and (c).

Question 2: In a situation where a federal employee is being sued in a civil tort suit while a target of a criminal investigation or a defendant in a criminal case, would the Department support statutory authority to reimburse the employee for private counsel fees in the civil case, if,

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after a determination on the merits in the criminal case, the investigation is closed or the individual has been found innocent?

Answer 2: There may be instances in which it would be unduly harsh to require an employee to pay legal fees after he has been vindicated of the conduct for which he

was investigated or prosecuted. For this reason, we are studying all aspects of the current policy against representation and reimbursement.

Question 3: Would the Department support an amendment giving it statutory authority to retain private counsel only when there is a conflict among federal employees?

Answer 3: While we believe the Attorney General has the authority to hire private counsel under existing law, we would have no objections to specific statutory authority that would ratify it. The other conflicts of interest which persuaded us to provide private counsel are equally compelling for the benefits of such legislation if our proposed amendments to the Federal Tort Claims Act are not enacted.

Question 3(a): Would the Department suggest legislative language to accomplish this purpose?

Answer 3 (a): If the Congress desires to enact such legislation, we would be happy to assist in its drafting.

MINIMUM DAMAGE FIGURE

Question 1: What is the basis for the $1000 minimum figure for liquidated damages?

Answer 1: We used as a guide the minimum damage figure of $1000 prescribed by the Congress itself in 18 U.S.C. $2520, and it seemed acceptable to use because possible damages in constitutional tort cases are more often than not substantially less than that figure.

Question 2: What objection if any, would the Department have to raising the minimum damage recovery?

Answer 2: Considering that for constitutional torts we are also providing for the payment of reasonable attorney's fees and other litigation costs, we consider the $1000 figure as more than adequate.

Question 3: How much money has been paid in damages to citizens under the wiretap statute?

Answer 3: We are unaware of any payments made by federal employees under 18 U.S.C. $2520.

Question 4: What is the Department's estimate of the cost of this bill will be over the next few years for constitutional torts?

Answer 4: It is impossible to estimate.

Question 5: What has been the yearly cost to the government for awards in common-law tort cases?

Answer 5: With respect to cases handled by the Torts Section of the Civil Division which constitute the substantial portion of common law tort claims defended by the Department following amounts have been paid to opposing parties over the last five fiscal years:

Question 6: Under the liquidated damage provision in section 3 of the bill, does a claimant recover a minimum of $1000 for each suit he wins for each separate violation of