In 38 COMP. GEN. 343, the Comptroller General ruled that when Congress has specifically authorized a particular government agency or corporation to undertake litigation in the pursuance of its duties and responsibilities, i.e., the agency can “sue or be sued”, the out-of-pocket expenses incurred in prosecuting or defending such actions will be properly chargeable to the appropriations of that agency or corporation, even though the Department may prosecute or defend any litigation in which the agency or corporation becomes involved.

Further, those government agencies that lack Congressional authorization to institute suit or defend against legal actions (e.g., Farmers Home Administration) are also prohibited by the Comptroller General from using their appropriation to pay for litigative services. These agencies must rely upon the Department to act in their behalf and, as a result, all out-of-pocket expenses relating to the litigation are properly chargeable to the United States Attorneys’ appropriation as litigative expenses.

Out-of-pocket expenses are generally defined as those expenses incurred by agencies or organizations other than the United States Attorneys for services provided by a private vendor (i.e., persons or firms outside the federal government) which are directly related to conducting the litigation at hand.

[updated February 2018]