B-107113, JUNE 17, 1952, 31 COMP. GEN. 661

B-107113: Jun 17, 1952

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SUITS - DEFENSES - GOVERNMENT EMPLOYEES OR SERVICEMEN SUED FOR TORT OR OTHERWISE INVOLVING UNITED STATES IN CASES WHERE GOVERNMENT EMPLOYEES AND SERVICEMEN ARE SUED IN TORT OR CHARGED WITH VIOLATION OF LOCAL OR STATE CRIMINAL LAWS AS A RESULT OF THE PERFORMANCE OF THEIR OFFICIAL DUTIES. PROVIDED IT IS DETERMINED THAT THE INTERESTS OF THE UNITED STATES WOULD BE JEOPARDIZED SHOULD SUCH SUITS BE UNDEFENDED AND THAT BY REASON THEREOF THE UNITED STATES MIGHT BECOME LIABLE IN TORT OR OTHERWISE FOR DAMAGES ARISING OUT OF THE ALLEGED TORTIOUS OR CRIMINAL ACTIONS OF THE EMPLOYEES OR SERVICEMEN. " IS AVAILABLE FOR EXPENSES NECESSARY FOR THE LEGAL ACTIVITIES OF THE DEPARTMENT OF JUSTICE NOT OTHERWISE PROVIDED FOR.

B-107113, JUNE 17, 1952, 31 COMP. GEN. 661

SUITS - DEFENSES - GOVERNMENT EMPLOYEES OR SERVICEMEN SUED FOR TORT OR OTHERWISE INVOLVING UNITED STATES IN CASES WHERE GOVERNMENT EMPLOYEES AND SERVICEMEN ARE SUED IN TORT OR CHARGED WITH VIOLATION OF LOCAL OR STATE CRIMINAL LAWS AS A RESULT OF THE PERFORMANCE OF THEIR OFFICIAL DUTIES, THE DEPARTMENT OF JUSTICE MAY FURNISH COUNSEL AND INCUR EXPENSES INCIDENT TO THE SUITS, PROVIDED IT IS DETERMINED THAT THE INTERESTS OF THE UNITED STATES WOULD BE JEOPARDIZED SHOULD SUCH SUITS BE UNDEFENDED AND THAT BY REASON THEREOF THE UNITED STATES MIGHT BECOME LIABLE IN TORT OR OTHERWISE FOR DAMAGES ARISING OUT OF THE ALLEGED TORTIOUS OR CRIMINAL ACTIONS OF THE EMPLOYEES OR SERVICEMEN. THE DEPARTMENT OF JUSTICE APPROPRIATION " SALARIES AND EXPENSES, GENERAL LEGAL ACTIVITIES," IS AVAILABLE FOR EXPENSES NECESSARY FOR THE LEGAL ACTIVITIES OF THE DEPARTMENT OF JUSTICE NOT OTHERWISE PROVIDED FOR, INCLUDING MISCELLANEOUS AND EMERGENCY EXPENSES AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL OR HIS ADMINISTRATIVE ASSISTANT.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, JUNE 17, 1952:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 14, 1951, REFERENCE A3, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTING A DECISION AS TO WHETHER CERTAIN EXPENSES PROPERLY MAY BE INCURRED IN CONNECTION WITH THE GENERAL POLICY OF THE DEPARTMENT OF JUSTICE, AS REFLECTED IN CIRCULAR NO. 4122, MAY 11, 1950, OF AFFORDING COUNSEL AND REPRESENTATION TO GOVERNMENT EMPLOYEES AND SERVICEMEN WHO ARE SUED IN TORT OR CHARGED WITH VIOLATION OF LOCAL OR STATE CRIMINAL LAWS AS A RESULT OF THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

IT IS STATED IN YOUR LETTER AND THE ENCLOSURE THERETO THAT THE POLICY OF DEFENDING SUCH ACTIONS HAS BEEN ON THE ASSUMPTION THAT THE GOVERNMENT IS UNDER AN OBLIGATION TO DEFEND THE ACTS OF ITS EMPLOYEES PERFORMED UNDER COLOR OF OFFICE AND TO FORESTALL POSSIBLE LATER SUITS AGAINST THE UNITED STATES; THAT THE PASSAGE OF THE FEDERAL TORT CLAIMS ACT OF AUGUST 2, 1946, 60 STAT. 842, MAKING THE GOVERNMENT AMENABLE TO SUIT FOR TORTS OF ITS EMPLOYEES AND MEMBERS OF THE ARMED FORCES IS AN ADDITIONAL REASON FOR CONTINUATION OF SUCH POLICY. THE SUBJECT EXPENSES TO BE INCURRED ON BEHALF OF THE DEFENDANT EMPLOYEES INCLUDE THE COST OF REMOVAL FROM STATE TO FEDERAL COURTS, THE COST OF SUMMONING WITNESSES, TAKING DEPOSITIONS, PROCURING TRANSCRIPTS OF TESTIMONY AT THE TRIAL, APPEAL EXPENSES, AND SIMILAR OR RELATED EXPENSES.

THE ACT OF JUNE 22, 1870, 16 STAT. 162, 5 U.S.C. 316, PROVIDES AS FOLLOWS:

* * * THE SOLICITOR-GENERAL, OR ANY OFFICER OF THE DEPARTMENT OF JUSTICE, MAY BE SENT BY THE ATTORNEY-GENERAL TO ANY STATE OR DISTRICT IN THE UNITED STATES TO ATTEND TO THE INTERESTS OF THE UNITED STATES IN ANY SUIT PENDING IN ANY OF THE COURTS OF THE UNITED STATES, OR IN THE COURTS OF ANY STATE, OR TO ATTEND TO ANY OTHER INTERESTS OF THE UNITED STATES; * * *

ALSO, THE APPROPRIATIONS OF THE DEPARTMENT FOR THE PAST SEVERAL YEARS HAVE CONTAINED A PROVISION UNDER THE HEADING " SALARIES AND EXPENSES, GENERAL LEGAL ACTIVITIES," FOR EXPENSES NECESSARY FOR THE LEGAL ACTIVITIES OF THE DEPARTMENT OF JUSTICE NOT OTHERWISE PROVIDED FOR, INCLUDING MISCELLANEOUS AND EMERGENCY EXPENSES AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL OR HIS ADMINISTRATIVE ASSISTANT. ACCORDINGLY, IF YOU SHOULD DETERMINE THAT THE INTERESTS OF THE UNITED STATES WOULD BE JEOPARDIZED SHOULD SUCH SUITS AGAINST EMPLOYEES OR SERVICEMEN BE UNDEFENDED AND THAT BY REASON THEREOF THE UNITED STATES MIGHT BECOME LIABLE IN TORT OR OTHERWISE FOR DAMAGES ARISING OUT OF THE ALLEGED TORTIOUS OR CRIMINAL ACTIONS OF THE EMPLOYEES OR SERVICEMEN AND YOU OR YOUR ADMINISTRATIVE ASSISTANT AUTHORIZE OR APPROVE SUCH EXPENSES AS REQUIRED BY THE APPROPRIATION PROVISION, THIS OFFICE WOULD NOT OBJECT TO PAYMENT OF SUCH EXPENDITURES.

HOWEVER, THIS OFFICE HAS FOUND NO REQUIREMENT FOR YOUR DEPARTMENT'S DEFENDING GOVERNMENT EMPLOYEES OR SERVICEMEN FOR MINOR TRAFFIC VIOLATIONS, OVER PARKING, ETC., WITH WHICH THEY MAY BE CHARGED IN THE COURSE OF THEIR DUTIES WHERE NO INJURY TO PERSONS OR PROPERTY ARE INVOLVED FOR WHICH THE UNITED STATES MIGHT BE SUBJECT TO RESPOND IN DAMAGES AND THERE WOULD APPEAR TO BE NO OBLIGATION OR AUTHORITY IN YOUR DEPARTMENT TO DEFEND SUCH ACTIONS.