Justice Manual § 4-5.410

The Constitutional Torts staff defends present and former federal employees against claims seeking to recover money damages from their personal assets in suits challenging conduct undertaken in the scope of federal employment and authorizes representation in cases handled by the U.S. Attorney Offices. Under 28 U.S.C. §§ 516 to 519, the Attorney General and the Department of Justice are responsible for attending to the interests of the United States in litigation, which includes providing individual-capacity representation in this context.

Policy guidelines pertaining to individual-capacity representation are found at 28 C.F.R. §§ 50.15 and 50.16.

Caution. Department attorneys are forbidden from providing individual-capacity representation to federal employees unless individual-capacity representation has been approved under the procedures set forth in 28 C.F.R. § 50.15(a)(1) and (a)(2) or other applicable policies or provisions. This ban includes removal under 28 U.S.C. § 1442 of suits filed in state court.

Exception. While a request for individual-capacity representation is pending, Department attorneys may seek an extension of time for the defendant employee to respond to a complaint to preserve the status quo, provided the motion makes it clear the Department attorney is appearing for that limited purpose and that a representation decision is pending within the Department.

The overwhelming majority of requests from federal employees for individual-capacity representation by Department attorneys are processed by the Constitutional Torts staff. Accordingly, agency counsel should forward the papers described in 28 C.F.R. § 50.15(a)(1) and (a)(2) to the Constitutional Torts Staff, preferably by email, to doj.representation@usdoj.gov.

Personal damages claims against individuals raise special concerns that are critical to their defense and with which the government attorney must be able to deal effectively. These are discussed briefly in subsequent sections.