Generally. Federal employees, including Department of Justice employees, may be provided individual-capacity representation by the Department of Justice under certain circumstances. Under 28 C.F.R. § 50.15(a), federal employees are provided representation in civil, criminal, and congressional proceedings when they are sued, subpoenaed, or charged in an individual capacity for actions that reasonably appear to have been performed within the scope of employment, and when the Attorney General or his or her designee determines that providing representation would otherwise be in the interest of the United States. 28 C.F.R. § 50.15(a). This includes representation for proceedings before an administrative or regulatory board when an employee’s professional license is subject to revocation for actions that reasonably appear to have been performed within the scope of the employee’s employment and provided that representation would otherwise be in the interest of the United States. Individual-capacity representation may also be available in some circumstances in which an employee has been threatened with legal action for actions that reasonably appear to have been performed within the scope of the employee’s employment and provided that representation would otherwise be in the interest of the United States.

When a government employee is sued in an official capacity, the real defendant is the United States, and should relief be awarded, it would be against the resources of the United States. Kentucky v. Graham, 473 U.S. 159 (1985). As a matter of course, Department attorneys represent federal officials sued in their official capacities for declaratory, injunctive or other forms of relief, and 28 C.F.R. § 50.15 is not implicated.

When an employee (present or former) is sued, subpoenaed, or charged in his or her individual capacity in a civil, criminal, or legislative proceeding, he or she might face a personal risk of adverse consequences. For example, a plaintiff may seek recovery from the personal assets of the employee as opposed to the assets of the United States, the employee may face criminal liability under state or local law on account of performing government duties, or the employee’s professional license may be at risk as a result of conduct within the scope of employment. When an employee is subpoenaed for testimony, Department of Justice representation is most likely to be appropriate where the testimony may be used against the employee in another matter in which the employee faces personal liability.

Situations in Which Individual-Capacity Representation Is Generally Not Available. Department of Justice representation is generally not available in a federal criminal proceeding or investigation. 28 C.F.R. § 50.15(a)(4). Nor is it available in a civil case if the employee is the subject of a federal criminal investigation concerning the act or acts for which he seeks representation. See 28 C.F.R. § 50.15(a)(5) to (7). In such a civil case, however, private counsel may, if appropriate, be provided to the employee at federal expense, provided no decision has been made to seek an indictment or file an information against the employee. 28 C.F.R. § 50.15(a)(7).

Criteria for Individual-Capacity Representation. There is a two-part test. First, the employee’s actions giving rise to the individual-capacity suit, subpoena, or charge must reasonably appear to have been performed within the scope of federal employment. Second, it must be in the interest of the United States to provide the requested representation. 28 C.F.R. § 50.15(a).

The Department of Justice is ultimately responsible for determining whether a federal employee may be provided legal representation under 28 C.F.R. § 50.15. In making that determination, the Department considers the statement provided by the federal employee’s employing agency (or component in the case of a Department employee) containing its findings as to whether the employee was acting within the scope of employment and the agency’s (or component’s) recommendation for or against providing representation. This statement should be accompanied by all available factual information. 28 C.F.R. § 50.15(a)(1). Agencies, United States Attorneys, and Department component heads cannot authorize representation. Instead, as noted above, requests for representation should be routed to the Civil Division’s Constitutional Torts staff per the procedures listed below.

Because the Executive Branch is responsible for determining the interests of the United States in litigation, decisions of this nature are generally precluded from judicial review by the doctrine of separation of powers.

Procedure for Requesting Department of Justice Representation.

Generally. Department of Justice representation is neither automatic nor compulsory; federal employees are free to retain counsel of their choice at their own expense. Every employee (present or former) who desires Department of Justice representation must request it in writing. The written request should be submitted to the individual’s employing agency (usually the Office of the General Counsel, Chief Counsel, or Solicitor) along with a copy of the summons and complaint or other legal papers. DOJ employees should send their request to their employing component (or, for former employees, the component where they were employed at the relevant time). Employees in U.S. Attorneys’ offices and EOUSA should send their request to EOUSA General Counsel’s Office. The agency, counsel’s office, or component should then forward the request with all available factual information to the Civil Division’s Constitutional Torts Staff with a recommendation as to whether representation should be provided based upon the criteria of “scope” and “interest.” 28 C.F.R. § 50.15(a)(1). If a United States Attorney’s Office receives a request for representation in a case in its district for an employee of another agency or DOJ component, it should consult with the Civil Division’s Constitutional Torts Staff.

Time-Sensitive Requests. If a request for individual-capacity representation must be considered promptly, it should be emailed to doj.representation@usdoj.gov and followed by a telephone call to the Director of the Constitutional Torts Staff to advise regarding the short suspense date. In some rare cases an oral request for “conditional” approval may be made, provided sufficient information is available to determine scope of employment and interest of the United States. See 28 C.F.R. § 50.15(a)(1). Such requests must be supplemented by a written representation request package as soon as possible. Finally, as noted, above, United States Attorneys have automatic authority to seek extensions of time in which to respond to a complaint.

Representation Agreements. Once individual-capacity representation is approved, the litigating attorney should provide a Form 399 to the client for signature and return. The form sets forth the limitations of Department of Justice representation so that the client may be fully informed before he or she enters into the attorney-client relationship. See Department of Justice Order 2770.5.

Appellate Review. Whenever the Solicitor General declines to authorize an appeal on behalf of an employee or representation of the employee involves assertion of a position that conflicts with the interest of the United States, the Department may not continue to represent the employee if: (1) the employee does not knowingly agree to forego appeal or waive assertion of the position; or (2) the assigned attorney determines, after consultation with his or her supervisor (and, if appropriate, with the litigating division) that an appeal or assertion of the position is necessary to the employee's adequate representation. 28 C.F.R. § 50.15(a)(11). However, in appropriate cases, private counsel may be provided at federal expense. 28 C.F.R. § 50.15(a)(11)(iii).

Payment of Adverse Judgments. Regardless of whether representation is provided by the Department of Justice, a federal employee remains personally responsible for the satisfaction of a judgment entered solely against the employee; there is no right to compel indemnification from the United States or an agency thereof in the event of an adverse judgment. However, the Attorney General may authorize indemnification of Department of Justice employees for adverse judgments. See 28 C.F.R. § 50.15(c). Pre-judgment indemnification is disfavored by the Department and is not available except in rare and extraordinarily compelling circumstances. Id. at (c)(3). Other agencies have similar regulations regarding indemnification of their employees.

Private Counsel. Where the ordinary requirements for representation are met (scope of employment, plus interest of the United States), but where conflicts in the factual or legal positions of a number of defendants make representation by a single attorney impossible, or where other circumstances are present that make direct Department representation unsuitable, retention of private counsel at government expense may be authorized, if appropriate, and subject to the availability of funds. See 28 C.F.R. §§ 50.15(a)(10)-(11) and 50.16. Special written agreements between the Department of Justice and private counsel are required. See Civil Division Administrative Directive 2120B.

[updated April 2024]