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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.

                                                       11
