547 lem, it absorbed over $500,000 to pay private counsel, to the detriment of other activities. We can no longer absorb the increasing costs of private counsel fees. The swine flu litigation with which we are faced, and with which we will be concerned for years to come, arises out of Public Law 94-380, enacted on August 12, 1976. This act initiated the national swine flu immunization program. That act is a departure from existing law in that it initially exculpates from suit the private individuals and organizations who manufacture or administer the vaccine as "program participants" and gives to an injured party an exclusive remedy in damages against the United States. The act also enlarges the grounds upon which recovery may be obtained against the United States. We are now liable not only under the normal common law negligence theory but under theories of strict liability and breach of warranty as well. Liability under any of these theories will still be governed by the laws of the State where the injury occurred. The act also preserves to the United States a cause of action against program participants to recover such portion of the damages which is attributable to negligent acts of commission or omission of the program participants. This cause of action exists irrespective of State law limitations. We anticipate a large number of substantial cases under the swine flu program. It is essential that the staffing for that litigation be undertaken immediately to permit the digesting, indexing, and computerization of the statutory and decisional law of each of 56 jurisdictions including the 50 States, and to process the administrative claims already filed with the Department of Health, Education, and Welfare. The Departments of Justice and HEW have agreed that because of the broad base of theories upon which recovery may be obtained under the differing laws of the several States and because of the need promptly to ascertain whether any cause of action may accrue to the United States against program participants for negligence, that the analysis of claims and the recommendation with respect to their administrative allowance be first undertaken by Department of Justice attorneys. It is important, if not imperative, that the conduct of swine flu litigation be retained in the Department for direct handling by its negligence attorneys in the Torts section. It is hoped that the modest request for 28 postions will meet the minimum requirements for the above purposes and enable us to handle the litigation already instituted. Finally, the Civil Division requests funds for the conduct of litigation arising under the Freedom of Information and Privacy acts and for related litigation. For this purpose we request $439,000 and 18 positions. I wish to emphasize that none of these positions or funds are sought or will be used for the processing of requests for records received under the Freedom of Information or Privacy acts. The 1974 amendment to the Freedom of Information Act which became effective on February 19, 1975, engendered an unanticipated and large amount of litigation. Within 9 months after the effective date of the amendments, suits under or related to the Freedom of Information Act had increased fourfold. By the end of November 1975, 409 cases under the Freedom of Information Act or related thereto were pending as contrasted with 98 pending at the time the act was 548 amended. The unexpected demands made upon our attorneys by the sudden influx of this litigation, prompted the Attorney General to establish a separate section in the Civil Division to handle the litigation, much of which is sensitive, requiring careful consideration. To staff this responsibility, we were compelled to draw on the already strained litigation resources in the division. The litigation in this area has steadily increased so that by the end of December 1976, there were pending 867 cases under the Freedom of Information and Privacy acts and related matters. The few positions requested for this work, of which 11 will be attorneys, are barely sufficient to assure that the Government's position in this type of litigation is reasoned, consistent and effectively presented. This concludes my statement Mr. Chairman. I shall be happy to answer any questions you or other members of the subcommittee may have. [The attachment follows:] ACTION: Statement of policy EFFECTIVE DATE: The date of this publication. SUMMARY: The attached statement of policy describes the limits within which the Department may provide for representation of Federal employees with respect to employmentrelated matters in which they are involved in their individual capacity. Representation in these matters is limited to state criminal proceedings, and civil and Congressional proceedings. SUPPLEMENTARY INFORMATION: It may be helpful to set forth briefly the manner in which the representation authority set forth in the statement of policy is currently being applied. Bearing in mind that extraordinary situations may justify going to the outer limits of the guidelines, the present practice of the Department is as follows: 1. The Department will represent an employce who is 550 2. Where, although the employee reasonably appears to have acted within the scope of his employment, a pending investigation has disclosed some evidence of his specific participation in a crime, the Department will pay for representation by a private attorney. 3. The Department will likewise pay for representation by a private attorney when several employees, otherwise entitled to representation by the Department, have sufficiently conflicting interests which in the Department's view preclude representation of each of them by the Department. 4. The Department will not represent, or pay for the representation of, any employee, if, with respect to the acts that are the subject of the representation, an indictment or information has been filed against him by the United States or a pending investigation of the Department indicates that he committed a criminal offense. 5. The Department will not provide or pay for representation where the positions taken would oppose positions maintained by the United States itself. By virtue of the authority invested in me by 28 U.S.C. 509, Part 50 of Chapter I of Title 28 of the Code of Federal Regulations is hereby amended by addition of the following sections: 551 3 $50.15 Representation of Federal Employees by Under the procedures set forth below, a (2) (2) When an employee believes he is entitled whether representation should be provided. The communication between the employee and any individual acting as Upon receipt of the agency's notification |