[Federal Register: May 18, 2004 (Volume 69, Number 96)]
[Rules and Regulations]
[Page 28041-28042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my04-1]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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The Code of Federal Regulations is sold by the Superintendent of Documents.
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[[Page 28041]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 1
[Docket No. 03-030F]
Indemnification of Department of Agriculture Employees
AGENCY: Office of the Secretary, USDA.
ACTION: Statement of policy; final rule.
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SUMMARY: The Department of Agriculture is adding a new subpart to part
1 of title 7 of the Code of Federal Regulations. This statement of
policy is similar to the policy adopted by other Federal agencies,
including the Department of Treasury, Department of the Interior,
Department of Health and Human Services, and the Department of Justice
in that it permits indemnification of Departmental employees in
appropriate circumstances, as determined by the Secretary or the
Secretary's designee, for claims made against them as a result of
actions taken by them in the course of their employment.
DATES: Effective May 18, 2004.
FOR FURTHER INFORMATION CONTACT: Philip S. Derfler, Assistant
Administrator, Office of Policy and Program Development, Food Safety
and Inspection Service, U.S. Department of Agriculture, Room 350-E,
Jamie L. Whitten Building, 1400 Independence Avenue, SW., Washington,
DC 20250-3700, telephone (202) 720-2709, fax (202) 720-2025.
SUPPLEMENTARY INFORMATION:
The United States Department of Agriculture (USDA) does not now
have a policy to indemnify its employees who are sued in their
individual capacity and who suffer an adverse judgment as a result of
conduct taken within the scope of their official duties. Lawsuits
against Federal employees in their personal capacities have
proliferated since the Supreme Courts decision in Bivens v. Six Unkown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
This decision held that personal damage awards against a Federal
employee are permitted when, in the course of his or her employment,
the Federal employee is found to have violated an individual's
constitutional rights. Although the Federal Liability Reform and Tort
Compensation Act of 1988, Public Law 100-694, prohibits personal
actions against Federal employees for common law torts committed in the
course of employment, that Act does not protect employees from all
other types of actions, including those arising under the Constitution.
A number of actions have been filed against USDA employees. While the
majority of these claims have resulted in judgments adverse to the
claimants, the prospect of personal liability and the burden of
defending a suit for money damages, simply as a result of doing one's
job, has had a negative effect on USDA operations.
The Department believes that actions against Federal employees in
their personal capacity may hinder the Department's effectiveness.
Uncertainty as to what conduct may lead to a claim tends to intimidate
employees and to stifle creativity and decisive action. Employees'
fears of personal liability affect government operations, decision
making, and policy determinations.
The Department believes that lawsuits against Federal employees in
their personal capacity may constitute an impediment to the effective
conduct of the public's business. A clear articulation of the
Department's policy to permit the indemnification of Department
employees should go a long way toward removing this impediment.
The USDA's policy is to permit, but not require, the
indemnification of a Department employee who suffers an adverse
verdict, judgment, or other monetary award, provided that the actions
giving rise to the judgment were taken within the scope of his or her
employment, and that such indemnification is in the interest of the
United States, as determined by the Secretary or the Secretary's
designee. Under the same conditions, the Department may also choose to
indemnify an employee who enters into a final settlement or compromise
of an adverse claim.
Generally, the Department will not indemnify or pay to settle or
compensate a personal damage claim against an employee before entry of
an adverse verdict, judgment, or monetary award. However, in rare
cases, the Secretary may determine that exceptional circumstances
justify the earlier indemnification or payment of a settlement or
compromise amount. This approach is designed to discourage claims
against Department employees solely to pressure the Department into
settlement. In the usual case, the Department will not compromise a
matter before a final determination, even if a dispositive motion filed
on behalf of the employee has been denied.
Once a verdict, judgment, or monetary award has been entered
against an employee or a settlement proposal entered into by an
employee, a Department employee may request indemnification to satisfy
that verdict, judgment, award or settlement proposal. The employee
shall submit a written request, with appropriate documentation that
includes a copy of the verdict, judgment, award or settlement proposal,
to the head of his or her employing component. The head of the
employee's employing component shall thereupon submit it to the General
Counsel, in a timely manner, for a recommended disposition of the
request. The Office of the General Counsel shall forward the employee's
request, the employing component's recommendation, and the General
Counsel's recommendation, along with the time frame in which a decision
is needed, to the Secretary or his or her designee for decision. The
Secretary or his or her designee will decide promptly whether to
indemnify or pay for a settlement of a personal damage claim.
Administration Procedure Act
This policy relates to the Department of Agriculture management and
personnel. It is published in final form without the opportunity for
public notice and comment because it is a statement of policy. See 5
U.S.C. 553(b)(A).
Executive Order 12866 and the Regulatory Flexibility Act
This policy has been determined to be not economically significant
for the purposes of Executive Order 12866. It
[[Page 28042]]
will not have a significant economic effect on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.).
Paperwork Requirements
This policy is not subject to the Paperwork Reduction Act because
it deals solely with internal rules governing Department of Agriculture
personnel.
List of Subjects in 7 CFR Part 1
Administrative practice and procedure, Indemnity payments,
Government employees, Claims.
0
For the reasons stated in the preamble, title 7 part 1 of the Code of
Federal Regulations is amended by adding subpart N to read as follows:
SUBPART N--POLICY WITH REGARD TO INDEMNIFICATION OF DEPARTMENT OF
AGRICULTURE EMPLOYEES
Authority: 5 U.S.C. 301.
Sec. 1.501 Policy on employee indemnification.
(a) Indemnification, under the context of this section, shall be
the policy whereby the Department of Agriculture compensates an
employee for the legal consequences of conduct, taken within the scope
of his or her employment, giving rise to a verdict, judgment, or other
monetary award rendered against the employee.
(b) The Department of Agriculture may indemnify a Department
employee (which for the purposes of this regulation shall include a
former employee) for any verdict, judgment, or other monetary award
rendered against such employee, provided the Secretary or the
Secretary's designee determines, in his or her discretion, that the
conduct giving rise to such verdict, judgment, or award was taken
within the scope of his or her employment with the Department, and such
indemnification is in the interest of the United States.
(c) The Department of Agriculture may pay for the settlement or
compromise of a personal damage claim against a Department employee by
the payment of available funds, at any time, provided that the
Secretary or the Secretary's designee determines, in his or her
discretion, that the alleged conduct giving rise to the personal damage
claim was taken within the scope of the employee's employment, and such
settlement or compromise is in the interest of the United States.
(d) Absent exceptional circumstances, as determined by the
Secretary or his or her designee, the Department will not entertain a
request to agree to indemnify or pay for a settlement of a personal
damage claim before entry of an adverse judgment, verdict, or other
monetary award.
(e) When a Department employee becomes aware that an action has
been filed against the employee in his or her individual capacity as a
result of conduct taken within the scope of his or her employment, the
employee should immediately notify his or her supervisor that such an
action is pending. The supervisor shall promptly thereafter notify the
Office of the General Counsel.
(f) A Department employee may request indemnification to satisfy a
verdict, judgment, or monetary award entered against the employee or to
satisfy the requirements of a settlement proposal. The employee shall
submit a written request, with appropriate documentation that includes
a copy of the verdict, judgment, award or settlement proposal, as
appropriate, to the head of his or her employing component, who shall
thereupon submit it to the General Counsel, in a timely manner, a
recommended disposition of the request. The Office of the General
Counsel shall seek the views of the Department of Justice. The Office
of the General Counsel shall forward the employee's request, the
employing component's recommendation, and the General Counsel's
recommendation, along with the time frame in which a decision is
needed, to the Secretary or his or her designee for decision. The
Secretary or his or her designee will decide promptly whether to
indemnify or pay for a settlement of a personal damage claim.
(g) Any payment under this section to indemnify a Department
employee for a personal damage verdict, judgment, or award or to settle
a personal damage claim shall be contingent upon the availability of
appropriated funds of the employing component of the United States
Department of Agriculture.
Ann M. Veneman,
Secretary.
[FR Doc. 04-11051 Filed 5-17-04; 8:45 am]