[Federal Register Volume 60, Number 109 (Wednesday, June 7, 1995)]
[Rules and Regulations]
[Pages 29987-29988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13838]
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DEPARTMENT OF STATE
22 CFR Part 21
[Pub. Not. 2210]
Office of the Legal Adviser; Indemnification of Department of
State Employees
AGENCY: Department of State.
ACTION: Final rule and statement of policy.
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SUMMARY: This statement announces a Department of State policy to
permit payment of Department funds to indemnify Department employees
who suffer adverse money judgments as a result of acts within the scope
of their employment and to settle personal damages claims involving
such acts, as determined by the Under Secretary for Management or his
or her designee. This rule is similar to regulations adopted by other
Federal agencies, including the Department of Justice (28 CFR part 50),
the Department of the Treasury (31 CFR part 3) and the Agency for
International Development (22 CFR part 207).
EFFECTIVE DATE: June 7, 1995.
FOR FURTHER INFORMATION CONTACT:Jean Bailly, Attorney-Adviser, Office
of the Assistant Legal Adviser for Legislation and Management, U.S.
Department of State, (202) 647-5154.
SUPPLEMENTARY INFORMATION: Lawsuits against federal employees in their
individual capacities have proliferated since the 1971 Supreme Court
decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388. These suits personally attack officials at all
levels of government and target many federal activities, particularly
law enforcement. The Federal Liability Reform and Tort Compensation Act
of 1988, Public Law 100-694, permits substitution of the Government in
many personal liability tort suits against officials. However,
substitution is not possible in some cases, notably claims arising
under the Constitution and claims arising under foreign law. Although
the Department has had few such cases, the risk of personal liability
and the burden of defending suits for money damages is clearly present
for Department employees. An adverse judgment in such a case has
detrimental consequences to the employee, both monetary and otherwise.
Fear of personal liability also has potentially adverse consequences
for State Department operations, decisionmaking, and policy
determinations. The prospect of personal liability, and even the
uncertainty as to what conduct may result in a lawsuit against an
employee personally, may tend to intimidate employees and stifle
initiative and decisive action.
The Department believes a policy with respect to indemnification in
such cases will serve to minimize this impediment to Department
operations and would accord Department employees the same protection
now enjoyed by most state and local government employees as well as
those of most corporate employers. This policy is supported by the
general principle that an agency has the authority to expend
appropriated funds to further the mission of the agency and the
objectives underlying the appropriation. Pursuant to this principle,
the Department of State believes that indemnification is related both
to the Department's mission and to the objectives underlying its
general appropriations.
The indemnification policy will permit, but does not require, the
Department to indemnify a Department employee who faces an adverse
verdict, judgment or other monetary award, provided that the actions
giving rise to the judgment were taken within the scope of employment
and that such indemnification is in the interest of the United States,
as determined by the Under Secretary for Management or his or her
designee.
Absent exceptional circumstances, the Department will not agree
either to indemnify or to settle a case before entry of an adverse
judgment. This approach is intended to discourage the filing of
lawsuits against federal employees in their individual capacities
solely in order to pressure the Government into settlement. In the
usual case, the Department will not settle a case before trial and
judgment merely because a dispositive motion filed on behalf of the
employee has been denied.
Personal services contractors are considered employees for purposes
of this policy. This policy is applicable to any actions pending
against Department employees as of its effective date.
In addition to the general indemnification provisions contained in
these proposed regulations, the Department will follow its more
specific indemnification policy with respect to damages awarded against
Department health care personnel for malpractice claims within the
scope of 22 U.S.C. 2702. The Department anticipates publishing
regulations relating to this policy of indemnification.
Paperwork Reduction Act
This regulation is not subject to the Paperwork Reduction Act
because it deals solely with internal Department rules governing
personnel.
Cost/Regulatory Analysis
Because this rule relates solely to agency management and
personnel, it is not subject to the notice and delayed effective date
provisions of the Administrative Procedure Act (5 U.S.C. 553). It is
likewise exempt from the procedures of E.O. 12866 (Regulatory Planning
and Review). Because no notice of proposed rulemaking is required for
this rule, the provisions of the Regulatory Flexibility Act (5 U.S.C.
601-612) do not apply.
List of Subjects in 22 CFR Part 21
Administrative practice and procedure, Government employees, Tort
claims.
[[Page 29988]] Accordingly, 22 CFR is hereby amended by adding a
new part 21 as follows:
PART 21--INDEMNIFICATION OF EMPLOYEES
Authority: 5 U.S.C. 301; 22 U.S.C. 2658.
Sec. 21.1. Policy.
(a) The Department of State may indemnify an employee for any
verdict, judgment, or other monetary award which is rendered against
such employee, provided that the conduct giving rise to the verdict,
judgment, or award was taken within the scope of employment and that
such indemnification is in the interest of the United States, as
determined as a matter of discretion by the Under Secretary for
Management or his or her designee.
(b) The Department of State may settle or compromise a personal
damages claim against an employee by the payment of available funds at
any time, provided the alleged conduct giving rise to the personal
damages claim was taken within the scope of employment and that such
settlement or compromise is in the interest of the United States, as
determined as a matter of discretion by the Under Secretary for
Management or his or her designee.
(c) The Director General of the Foreign Service and Director of
Personnel (``Director General'') shall be the designee of the Under
Secretary for Management with respect to determinations under
paragraphs (a) and (b) of this section in cases which involve:
(1) Foreign courts or foreign administrative bodies and
(2) Requests of less than five thousand dollars.
(d) Absent exceptional circumstances as determined by the Under
Secretary for Management or his or her designee, the Department will
not entertain a request either to agree to indemnify or to settle a
personal damages claim before entry of an adverse verdict, judgment, or
award.
(e) When an employee in the United States becomes aware that an
action has been filed against the employee in his or her personal
capacity as a result of conduct taken within the scope of his or her
employment, the employee shall immediately notify the Department
through the Executive Director of the Office of the Legal Adviser that
such an action is pending. Employees overseas shall notify their
Administrative Counselor who shall then notify the Assistant Legal
Adviser for Special Functional Problems. Employees may be authorized to
receive legal representation by the Department of Justice in accordance
with 28 CFR 50.15.
(f) The employee may thereafter request indemnification to satisfy
a verdict, judgment, or award entered against the employee. The
employee shall submit a written request, with appropriate documentation
including copies of the verdict, judgment, award, or settlement
proposal if on appeal, to the Legal Adviser. Except as provided in
paragraph (g) of this section, the Legal Adviser and the Director
General shall then, in coordination with the Bureau of Finance and
Management Policy, forward the request with their recommendation to the
Under Secretary for Management for decision. The Legal Adviser may seek
the views of the Department of Justice, as appropriate, in preparing
this recommendation.
(g) Cases in which the Director General is the designee under
paragraph (c) of this section may be forwarded by the Assistant Legal
Adviser for Special Functional Problems, along with the views of the
employee and the bureau or post as appropriate, to the Director General
for decision.
(h) Personal services contractors of the Department are considered
employees for purposes of the policy set forth in this part.
(i) Any payment under this part either to indemnify a Department of
State employee or to settle a personal damages claim shall be
contingent upon the availability of appropriated funds.
(j) In addition to the indemnification provisions contained in the
regulations in this part, the Department will also follow any specific
policies or regulations adopted with respect to damages awarded against
Department health care personnel for malpractice claims within the
scope of 22 U.S.C. 2702.
Dated: May 5, 1995.
Richard M. Moose,
Under Secretary for Management.
[FR Doc. 95-13838 Filed 6-6-95; 8:45 am]
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