BNUMBER: B-251141
DATE: May 3, 1993
TITLE: Department of Health and Human Services, Food and
Drug Administration - Reimbursement of Employees for
Private Attorney Fees Incurred in Federal Criminal
Investigation
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Matter of: Department of Health and Human Services, Food and Drug
Administration - Reimbursement of Employees for Private
Attorney Fees Incurred in Federal Criminal
Investigation
File: B-251141
Date: May 3, 1993
DIGEST
In the absence of Department of Justice approval, agency
appropriations may not be used to reimburse federal employees for
private attorney fees incurred incident to a federal criminal
investigation.
DECISION
The Department of Health and Human Services (HHS), Food and Drug
Administration (FDA), has requested our opinion on whether agency
appropriations may be used to reimburse FDA employees for private
attorney fees incurred incident to a federal criminal investigation.
For reasons set forth below, we conclude that, in the absence of
Department of Justice (Justice) approval, HHS appropriations may not
be so used. FDA should refer the employees' requests to Justice.
BACKGROUND
During the course of an investigation of a California investment firm,
the Securities and Exchange Commission (SEC) found the names and
business telephone numbers of several FDA employees in the firm's
business records. The SEC, concerned that the employees may have
engaged in insider trading, relayed this information to the HHS Office
of the Inspector General and the United States Attorney for the
District of Maryland. Both offices conducted separate investigations
to determine whether these employees had provided confidential product
approval information to the firm, and the U.S. Attorney convened a
grand jury.
The employees, asserting that the investigation focused on acts that
fell within the scope of their employment, requested legal
representation by the HHS Office of General Counsel. A number of the
employees are employed in FDA's Office of Public Affairs and were
responsible for answering public inquiries about routine FDA business.
They claimed that they had responded only to routine inquiries from
the investment firm. The Office of General Counsel denied the
requests on the ground that the criminal investigation raised
potential conflicts of interest between the employees and HHS. The
requests for representation were not referred to Justice.
Subsequently, the employees retained private counsel.
The Inspector General found that six of the employees had improperly
disclosed information, although without criminal intent. None of the
employees has been disciplined. The grand jury did not indict any of
the employees. All investigations of the employees have concluded and
no finding of criminal misconduct has been made.
HHS recommends reimbursement of the attorney fees, ranging from $3,000
to $6,000, because no civil or criminal charges resulted from the
investigations and, as it turned out, the matters at issue concerned
the performance of agency functions.
DISCUSSION
Agencies, other than Justice, are generally precluded from using
appropriations to hire attorneys to represent employees; federal law
reserves the conduct of litigation to Justice where the United States,
an agency, or an officer or employee of an agency is either a party or
has an interest in the litigation. 5 U.S.C. 3106; 28 U.S.C. 516
(1988). Justice provides for the defense of the employee when the
actions at issue appear to have been performed within the scope of the
employee's duties and Justice determines that providing representation
would be in the government's interest. 28 C.F.R. 50.15(a) (1990).
In limited circumstances, where Justice determines that representation
of a federal employee is appropriate but is unable to provide
representation, agency appropriations may be used to pay for legal
work that Justice determines to be in the government's interest. 50
Comp. Gen. 408, 412-413 (1975); 28 C.F.R. 50.16(d)(1).
Justice representation generally is not available in federal criminal
proceedings. 28 C.F.R. 50.15(a)(4). Justice will provide
representation to a federal employee in such instances only where the
Attorney General or his designee determines that representation is in
the government's interest and subject to applicable limitations in 28
C.F.R. 50.16. Id. Under Justice's procedures, unless the employing
agency concludes that representation is clearly unwarranted, it should
submit to Justice a statement containing its findings as to whether
the employee was acting within the scope of his employment and its
recommendation for or against providing representation. 50 C.F.R.
50.15(a)(1).
The FDA states that HHS did not submit the employees' requests for
representation to Justice, explaining that with regard to criminal
matters, it lacks the means "for making the requisite examination to
determine whether the activities in question are reasonably within the
scope of employees' duties." Since Justice's guidelines do not
specifically address the reimbursement of attorney fees that were
incurred without Justice's advance approval, FDA asks whether it may
reimburse the employees for the attorney fees as a necessary expense
of its appropriations under our decisions in 67 Comp. Gen. 37 (1987)
and 61 Comp. Gen. 515 (1982).[1]
Our decisions have consistently recognized that Justice
has exclusive authority to determine whether agency appropriations may
be used to reimburse employees for private attorney fees incurred in
federal criminal proceedings. E.g., 70 Comp. Gen. 628 (1991).
Therefore, it would not be appropriate for our Office to determine
whether FDA may reimburse the employees at issue here. Our Office
will determine whether agency appropriations may be so used only where
Justice defers to the employing agency, and the agency, in turn,
requests our opinion. Id.
The decisions of this Office cited by HHS as possibly authorizing the
use of FDA appropriations are not relevant here. In both 67 Comp.
Gen. 37 and 61 Comp. Gen. 515, we approved the use of agency
appropriations to pay for attorney fees because Justice does not
provide federal employees with representation in administrative
proceedings. This case does not involve an administrative proceeding.
In a March 4, 1993 letter to this Office, the Acting Attorney General
articulated Justice's policy regarding the reimbursement of attorney
fees in instances, such as here, where reimbursement is claimed after
the conclusion of a criminal investigation. The Acting Attorney
General noted that, generally, employees are required to make a timely
request for representation rather than retaining private counsel and
later requesting reimbursement of fees incurred. Nevertheless, he
explained, in rare instances, Justice may agree to reimbursement where
a private attorney has been retained without advance approval, if all
of the following circumstances are present:
-- the employee made a timely request for representation or
did not do so because he was not informed of its
availability;
-- the request was delayed or denied for reasons of
inadvertence, neglect, or mistake;
-- the exigencies of the litigation required that the employee
protect his interests by retaining counsel before receiving
approval from Justice; and,
-- representation of the employee either by a Justice
Department attorney or by a private attorney retained at
Department expense would have been appropriate.
In view of the above, FDA's request for reimbursement of the
attorneys' fees should be referred to Justice for consideration.
Justice has the responsibility for determining the interests of the
United States in litigation. Our cases do not support and were not
intended to allow agencies to pursue their own litigative policies.
Instead they recognize the availability of agency appropriations,
where otherwise necessary and proper, for uses consistent with the
litigative policies established for the United States by the Attorney
General. Allowing the reimbursement of the attorneys' fees, in this
case, as a necessary expense of HHS appropriations would place this
Office and HHS in the position of contradicting the clearly expressed
intent of the Congress to centralize control of government litigation
under the Attorney General. 70 Comp. Gen. 647, 650 (1991).
Comptroller General
of the United States
B-251141.2
The Honorable Frank R. Wolf
House of Representatives
Dear Mr. Wolf:
This responds to your letter concerning the Department of Health and
Human Services' (HHS) request for our opinion on whether agency
appropriations may be used to reimburse Food and Drug Administration
employees for private attorney fees incurred incident to a federal
criminal investigation. Enclosed is our decision of today's date
which recommends that HHS refer the employees' requests for
reimbursement to the Department of Justice for consideration.
Sincerely yours,
Comptroller General
of the United States
Enclosure
1. Under the "necessary expense rule," an appropriation made for a
specific object is available for expenses necessarily incident to
accomplishing that object unless prohibited by law or otherwise
provided for. 6 Comp. Gen. 619, 621 (1927).