The A ttorney General m ay use funds from the D epartm ent of Justice’s general appropriation to indem nify D epartm ent employees fo r actions taken within the scope o f their employment.
February 6, 1986
M em o ran d um O p in io n fo r th e A ttorney G eneral
This memorandum responds to your request for this Office’s opinion on the question whether you have authority to indemnify Department of Justice em ployees against personal liability for actions taken within the scope of their employment. Funds for the indemnification would come from the Department’s own appropriation. In an opinion issued in 1980, this Office expressed the view that the Attorney General does have such authority.1We have carefully re-examined that opinion and, for the reasons discussed below, continue to adhere to the view that the Attorney General may lawfully authorize the indemnification of Department employees for adverse money judgments (as well as for settled or compromised claims) arising out of actions taken within the scope of their employment. As noted in this Office’s 1980 opinion, the Attorney General has plenary authority to conduct and supervise all litigation in which the United States has an interest. This power derives generally from the Attorney General’s position as the chief legal officer of the federal government. See 28 U.S.C. §§516-519; 5 U.S.C. § 3106. “Included within the broad authority of the Attorney General to carry on litigation is the power to compromise.” “Settlement Authority of the United States in Oil Shale Cases,” 4B Op. O.L.C. 756 (1980) (footnote omit ted). See gen erally United States v. San Jacinto Tin Co., 125 U.S. 273, 284 (1888); 38 Op. Att’y Gen. 98 (1934). Under this general authority, the Attorney General has long taken steps to defend Department employees sued for actions taken within the scope of their employment. As stated in 1858 by Attorney General Black: When an officer of the United States is sued for doing what he was required to do by law, or by the special orders of the 1 M em orandum to A lice Daniel, A ssistant A ttorney G eneral, Civil Division from John M. Harmon, A ssistan t A ttorney G eneral, O ffice of Legal Counsel (A ug. IS, 1980) (1980 O pinion). See also M emorandum to R ichard K. W illard, A ssistant Attorney G eneral, C ivil D ivision from Ralph W. Tarr, D eputy Assistant A ttorney G eneral, O ffice o f Legal Counsel (O ct. 4, 1984) (com m enting on 1984 C ivil D ivision R epresenta tion Study); M em orandum fo r the Attorney General from Theodore B. O lson, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel (N ov. S, 1981) (suggesting that the A ttorney G eneral establish a policy on this issue).
6 Government, he ought to be defended by the Government. This is required by the plain principles of justice as well as by sound policy. No man of common prudence would enter the public service if he knew that the performance of his duty would render him liable to be plagued to death with lawsuits, which he must carry on at his own expense. For this reason it has been the uniform practice of the Federal Government, ever since its foundation, to take upon itself the defense of its officers who are sued or prosecuted for executing its laws. 9 Op. Att’y Gen. 51, 52 (1858). See also 5 Op. Att’y Gen. 397 (1851).2 The gradual erosion of the doctrine of sovereign immunity culminated in the enactment of the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, which permits suit to be brought directly against the United States once administrative remedies have been exhausted. Although enactment of the FTCA initially led to a decline in the number of suits against individual officers, the problem emerged afresh after the Supreme Court’s decision in Bivens v. Six Unknown N am ed Agents, 403 U.S. 388 (1971), holding that damages may be obtained against federal officers who have violated the constitutional rights of private individuals. Bivens and its progeny have led to a steadily increasing stream of damage actions against government employees sued in their individual capacity for alleged constitutional violations. This growth in damages claims, in turn, has revived the government’s interest in the problems of providing assistance to its employees who are sued in their individual capacity for job-related activities. The primary form of assistance, of course, is the provision of an attorney, either a Department of Justice employee or private counsel. Expenses incurred by the Department for private counsel are paid out of the Department’s general appropriation.3 In light of the Department’s interest in protecting both employee morale and any underlying federal interests involved in the lawsuits, payment of private counsel fees incurred in the defense of Department employees is warranted as “expenses necessary for the legal activities of the Department of Justice,” as our appro priation usually provides. See, e.g.. Pub. L. No. 96-68,93 Stat. 419 (1979). The Department has developed in the last decade extensive guidelines governing such representation. See 28 C.F.R. § 50.15.4 2 The practice o f defending such officers was made necessary in the early days o f our country because the doctrine o f sovereign im m unity forbade suits against the U nited States. Claim ants would therefore often sue the officer who had taken the w rongful action, alleging that he had acted outside the scope o f his official capacity. 3 Early exam ples o f agency appropriations being used to pay private counsel fees can be found at 12 Op. A tt’y Gen. 368 (1868), 9 Op. A tt’y Gen. 146 (1858), 5 Op. A tt’y Gen. 397 (1851), and 3 O p. A tt’y Gen. 306 (1838). “When a m inisterial or executive officer is sued for an act done in the lawful discharge o f his duty, the governm ent which em ployed him is bound, in conscience and h o n o r,. . . not [to] suffer any personal detrim ent to com e upon him for his fidelity, but will adopt his act as its ow n and pay the expense o f maintaining its legality before the tribunal where it is questioned.” 9 Op. A tt’y Gen. 146, 148 (1838). 4 The C om ptroller G eneral has long approved this use o f our general appropriation. See 31 Comp. Gen. 661 (1952); see also 53 Comp. Gen. 301 (1973) (use o f judiciary appropriation to pay for litigation costs w hen Department of Justice has declined representation).
7 In the 1980 Opinion, we advised the Civil Division that the Attorney General could expend money from the Department’s general appropriation to settle claims against Department employees for damages caused by actions taken within the scope of their employment. As in the case of departmental payment of private counsel fees, our conclusion was based on the basic rule that a general appropriation may be used to pay any expense that is necessary or incident to the achievement of the underlying objectives for which the appro priation was made. General Accounting Office, Principles o f Federal A ppro priations Law 3-12 to 3-15 (1982). If the agency believes that the expenditure bears a logical relationship to the objectives of the general appropriation, and will make a direct contribution to the agency’s mission, the appropriation may be used: It is in the first instance up to the administrative agency to determine that a given item is reasonably necessary to accom plishing an authorized purpose. Once the agency makes this determination, GAO will normally not substitute its own judg ment for that of the agency. Id. at 3-14. There is a clear logical connection between the achievement of an agency’s underlying mission and protecting the agency’s employees from financial liability for actions taken within the scope of their employment. As Attorney General Black noted in 1858, it will be difficult to recruit or maintain a superior federal work force if employees are fearful that they may face financial ruin for their actions notwithstanding the fact that they have acted within the scope of their employment.5 Similarly, the General Counsel for the Comptroller General has opined that the Department of the Interior may use its general appropriation to pay a judgment entered against two game wardens who had been convicted of trespass.6 See GAO Opinion B -168571-O.M. (Jan. 27, 1970) (unpublished). The wardens had entered onto private property at the direction of their superiors in order to post “No Hunting” signs. The General Counsel turned first to the question whether the employees had been acting within the scope of their employment: 5 9 O p. A tt’y Gen. 51, 52 (1858). In 1838 A ttorney G eneral Butler determ ined that the Navy could pay a ju d g m en t for dam ages and costs entered ag ain st a naval officer: T he recovery w as for acts done by C om m odore Elliot in the perform ance o f his official duty, and fo r costs occasioned b y the defenses m ade by the U nited States. It is therefore one o f those cases in w hich the o fficer ought to be fully indem nified; and the section to which I have referred may w ell be regarded as authorizing the departm ent to pay the amount required for such indem nifica tion, if, as already suggested, there b e any funds w ithin its control properly applicable to such a subject. 3 O p. A tt’y G en. 306 (1838). There is o th e r language in the early cases and A ttorney General opinions supporting the proposition th at the governm ent should and w ill indemnify such em ployees, but it is not clear w hether the paym ent w as m ade in these c ase s from an agency appropriation or through special legislation. See Tracy v. Swartwout, 35 U.S. (10 P e t.) 80, 9 8 -9 9 (1836) (“Som e personal inconvenience may be experienced by an o fficer w ho shall be h e ld responsible in dam ages for illegal acts done under instructions of a superior; but, as the governm ent in such cases is bound to indem nify the officer, there can be no eventual h ard sh ip ."); 9 Op. A tt’y Gen. 51, 53 (1 8 5 7 ) (“In Little v. Bareme , 6 U.S. (2 Cranch) 170, the G overnment took no part in the defense, but it afterw ards assum ed th e judgm ent, and paid it w ith interest and all charg es.” ). 6 See Merovka v. Allen , 410 F.2d 1307 (1 0 th Cir. 1969).
8 It is apparent that the claimants acted at the direction of their superiors and with legal advice upon which they were entitled to rely. They were required to act in the line of duty, and they intended faithfully to carry out the law enforcement activity of the Bureau. Under these circumstances and especially since they were directed by their superiors, the government is obligated to compensate them. Id. at 2. He then examined whether the judgment should be paid out of what is familiarly called the Judgment Fund, 31 U.S.C. § 1304, or some other source: [T]he judgment against the claimants is not sufficiently similar to a judgment against the United States to justify payment under 31 U.S.C. 724a [now codified at 31 U.S.C. § 1304], On the other hand, the claimants’ course of conduct resulting in their pay ment of the damages was sanctioned and directed by the Bureau of Sport Fisheries and Wildlife to the extent that it can reason ably be considered as law enforcement activity of the Bureau. Accordingly, reimbursement to the claimants should be charged to the Department of Interior appropriation available to the Bureau for necessary expenses of its law enforcement program. Id. at 3. The Comptroller General had earlier used the same analysis in determining that the Justice Department could use its general appropriation to indemnify an FBI agent for a fine imposed by a district court for contempt of court. 44 Comp. Gen. 312 (1964). The agent had refused, pursuant to Department regulations and instructions from the Attorney General, to answer certain questions con cerning a Mafia figure. After first determining that the agent had been acting within the scope of his employment and that the Judgment Fund was not available, the Comptroller General concluded:
[I]t is a settled rule that where an appropriation is made for a particular object by implication it confers authority to incur expenses which are necessary or proper or incident to the ac complishment of the objective or purpose for which made. The FBI appropriation. . . provides in general terms for, among other things, “expenses necessary for the detection and prosecu tion of crimes against the United States.” * * *
Accordingly, and since it appears from the facts reported and outlined herein that the expense of the fine reasonably would fall into that category, we conclude that payment of the con tempt fine of $500 may be regarded as a proper charge against this appropriation. 9 Id. at 314-15. More recently, the Comptroller General reached the same conclusion with respect to attorneys’ fees assessed against FBI agents involved in a raid on the Black Panthers. 59 Comp. Gen. 489 (1980). After noting that the lawsuit “arose by reason of the performance of their duties as employees of the FBI,” the Comptroller General stated flatly: “It has long been our view that the United States may bear expenses, including court imposed sanctions, which a Govern ment employee incurs because of an act done in the discharge of his official duties.” Id. at 492-93. The Comptroller General has applied these principles in at least two cases raising the specific issue of individual liability for damages. In 1977, he issued an opinion addressing the issue of liability under 26 U.S.C. § 7217 for disclo sure of a taxpayer’s return. 56 Comp. Gen. 615 (1977). Although IRS employ ees were protected under a specific statute authorizing their indemnification, see 26 U.S.C. § 7423(2), employees of other agencies that might have access to the forms were not. The Comptroller General concluded that damage awards against these employees could be funded from their agencies’ general appro priations. Id. at 619. In the second case, the Comptroller General concluded that the Drug Enforcement Administration could use its appropriation to settle a case in which two of its agents were charged with conduct violating the Fourth Amendment. See GAO Opinion B -176229 (Sept. 27, 1977) (unpub lished).7 Finally, this Office relied upon these principles in its opinions holding that the Department of Defense could use one of its appropriations to fund the settlement of constitutional tort claims against four Army officers arising out of Berlin D em ocratic Club v. Brown, 410 F. Supp. 144 (D.D.C. 1978). See Memorandum for the Attorney General from Larry A. Hammond, Deputy Assistant Attorney General, Office of Legal Counsel (Aug. 15, 1979); Memo randum from Larry A. Hammond, Acting Assistant Attorney General, Office of Legal Counsel to Barbara Allen Babcock, Assistant Attorney General, Civil Division (Jan. 24, 1979).8 7 The C o m p tro ller G eneral suggested that indem nification is not possible w hen an adverse final judgm ent is entered against an individual government em ployee on the issue o f fault. A lthough the 1980 Opinion did not reach th is issue, this O ffice advised the C iv il D ivision shortly thereafter that our analysis also supported the conclusion that, in appropriate circum stances, the A ttorney G eneral has authority to reim burse Justice D epartm ent em ployees for final judgments entered against them individually. See M emorandum for A lice D aniel, A ssistant A ttorney G eneral, Civil D ivision from John M. H annon, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel (A ug. 22, 1980). A s the A ssistant A ttorney General for the C ivil Division has underscored, the C om ptroller General has not m ade th e settlem ent/final judgm ent d istinction in other cases, “and in any event C om ptroller General opinions are not binding on the Attorney G en eral.” M em orandum for the A ttorney General from Richard K. W illard, A ssistant A ttorney General, C ivil D ivision (Jan. 6, 1986). M oreover, a careful reading o f the C om p tro ller G eneral opinion in which the d istinction was m ade suggests that it may actually relate to w hether the ad v erse ju d g m en t reveals that actions o f the officer w ere outside the scope o f his employment. In any event, w e believe th at such a distinction is untenable, and w e continue to adhere to previous opinions that indem nity is leg ally p erm issible both for settlem ents and final judgm ents. 8 T he C ivil D iv isio n ’s 1984 Representation Study identified m em oranda from Attorneys General C iviletti and Sm ith th at ap p ear to conflict with th e view expressed in our 1980 opinion. M emorandum for A lice C ontinued
10 Conclusion
We have reviewed our 1980 opinion on this subject and have again con cluded that the Attorney General may use the Department’s general appropria tion to indemnify Department employees for adverse money judgments, as well as for settled or compromised claims, arising out of actions taken within the scope of their employment.
Charles J. C o o p e r Assistant Attorney General Office o f Legal Counsel
8 ( . . . continued) Daniel, A ssistant Attorney G eneral, C ivil D ivision from Benjamin R. C iviletti, A ttorney General (N ov. 20, 1980); M emorandum to W illiam W ebster, D irector, Federal Bureau o f Investigation from W illiam French Smith, Attorney G eneral (N ov. 17, 1981) (resolving “to adhere to the existing D epartm ent policy generally not to pay settlem ents on behalf o f em ployees”). This apparent conflict may have led to uncertainty w ithin the D epartm ent, resulting in statem ents by D epartm ent officials suggesting the need for express legislative authority. See M emorandum fo r the A ttorney G eneral from R ichard K. W illard, Assistant A ttorney G eneral, C ivil Division (Jan. 6, 1986). W hile these statem ents obviously may be weighed in your decision on w hether to change the D epartm ent’s indem nification policy and, if so, on how to alert C ongress, they do not affect our analysis o f the Attorney G eneral’s legal authority to indemnify.