Under the following procedures, an employee (hereby defined to include present and former employees or their estates) may be provided representation in civil proceedings and in state criminal proceedings in which he or she is sued, subpoenaed, or charged in his or her official capacity, when the actions for which representation is requested reasonably appear to have been performed within the scope of his or her employment, and providing representation would be in the interest of the United States.
A provision of the Federal Tort Claims Act prohibits suits against individual government employees (including Postal Service employees) for loss, damage, or destruction of property or personal injury or death when caused by the negligent or wrongful act or omission of the employee while acting within the scope of his or her employment (Title 28, U.S.C. Section 2679).
An employee who believes he or she is entitled to representation by the Department of Justice in a proceeding must promptly submit a written request for that representation, together with all process and pleadings served, to the employee’s installation head. Failure to submit a request promptly may prevent the processing necessary to obtain approval of the employee’s request.
To give a request proper consideration, it must contain a detailed statement from the employee of his or her knowledge of the subject matter of the proceeding and be accompanied by all pertinent documents. The Department of Justice asks that the letter requesting representation be addressed to the following:
ASSISTANT ATTORNEY GENERAL CIVIL DIVISION
DEPARTMENT OF JUSTICE
WASHINGTON DC 20530–0001
The request letter must not be sent directly to the Assistant Attorney General. The request is to be sent directly to the employee’s installation head, who will, in turn, forward the request in accordance with 668.122. The Department of Justice requires that the request contain the following:
- The date the employee was served.
- The date on which the employee must respond or appear at a proceeding.
- A statement that the employee has read the complaint, that all conduct related to the allegations in the complaint occurred within the scope of the employee’s official duties, and that such conduct was done in the good faith belief that it was proper.
- A statement describing in detail the employee’s knowledge of the subject matter of the complaint. Failure to provide a detailed statement of the facts may prevent the processing necessary to obtain approval of the request.
The installation head or next higher level or other designated official must:
- Add to the employee’s request a separate statement indicating whether he or she believes the employee was acting within the scope of his or her employment at the time of the conduct that is the focus of the suit, subpoena, or citation.
- Forward the request without delay to the managing counsel for the area in which the proceeding arose.
- Submit to the managing counsel a covering transmittal memorandum containing a recommendation as to whether providing the employee representation would be in the best interests of the Postal Service. The submission must also include a statement detailing the installation head’s or appropriate designee’s knowledge of the subject matter of the case.
Postal Inspection Service personnel and Office of Inspector General personnel should follow procedures established by the chief postal inspector and inspector general, respectively, to request representation by the Department of Justice rather than follow the procedures set forth in this section.
The Department of Justice provides representation at its discretion and only after it determines that the employee acted within the scope of his or her authority and that such representation would be in the best interest of the United States.
Upon determination by the Department of Justice that an attorney will represent an employee, the employee will be so notified and will be provided information about the nature of Department of Justice representation.
An employee whose request under 668.12 has been denied for any reason may request reimbursement for legal fees incurred by his or her use of private counsel through the appropriate managing counsel.
An employee who has filed a request for representation under 668.12 may file a request for payment of any adverse judgment or settlement with the appropriate managing counsel.
Each request for reimbursement for legal fees, judgments, or settlements will be considered by the managing counsel on its individual merits after the case is concluded. Generally, reimbursement will be made if:
- It is equitable and fair to do so.
- The employee acted reasonably, within the scope of his or her authority, and not recklessly, in bad faith, or with obvious indifference to instructions.
- The amount requested is reasonable, and reimbursement is deemed to be in the best interest of the Postal Service.
Except as expressly set forth in 668.3, the provisions of 668 apply also to Postal Service governors, officers and inspector general. If such persons are named as defendants in a civil proceeding or state criminal proceeding in which they are sued, subpoenaed, or charged in their official capacity, and they desire to be represented by the Department of Justice, they must submit their request in accordance with 668.12 to the General Counsel, provided the following conditions apply:
- The actions for which representation is requested reasonably appear to have been performed within the scope of their employment.
- Providing representation would be in the interest of the Postal Service.
The Chairman of the Board of Governors and the Postmaster General submit their requests directly to the General Counsel. The Inspector General submits the request through the Office of Inspector General (OIG) General Counsel to the USPS General Counsel. To avoid doubt, at any time, a Postal Service governor, officer, or inspector general may select his or her independent counsel.
The following provisions apply:
- Except when 668.31 applies, and if other sources of indemnification, including insurance, are not valid, available, collectible, or applicable, or such coverage is denied, exhausted, or expired, it is in the best interest of the Postal Service that a current or former Postal Service governor, officer, or inspector general shall be indemnified by the Postal Service to the fullest extent allowable by law in connection with the following:
- Any suit, proceeding, or appeal to which such person is a party or is threatened to be made a party.
- Any investigation directed at such person or in which such person’s documents or testimony is sought, by reason of anything done or not done by him or her in his or her capacity as a current or former Postal Service governor, officer, or inspector general.
- Indemnification shall be subject to 668.322 and 668.323, and shall include, without limitation, attorneys’ fees, judgments and amounts paid in settlement, interest, assessments and other charges paid or payable in connection with or in respect of such expenses.
- Notwithstanding the foregoing, if any management liability insurance policy purchased by the Postal Service is cancelled or otherwise terminated prior to expiration, rescinded, or not renewed on substantially similar terms and conditions, or the insurer is financially unable to fulfill its obligations under the policy, the Postal Service will indemnify any current or former governor, officer, or inspector general who was insured under such insurance policy to the same extent that such person was afforded coverage under such insurance policy, provided, however, that renewal on substantially similar terms and conditions with a different insurer will not trigger this indemnification obligation.
The Postal Service shall reimburse, or advance if requested by the indemnitee, all reasonable legal expenses incurred by a Postal Service governor,officer , or inspector general in connection with any matter indemnifiable under 668.321. The reimbursements or advances shall be paid by the Postal Service within 30 days following delivery of a written request for advancement to the General Counsel.
The request must include an itemization of the costs for which reimbursement or advancement is sought. The itemization must include sufficient detail to allow the General Counsel to determine whether such costs are subject to reimbursement or advancement hereunder, provided that all legal expenses submitted for reimbursement or advancement are presumed reasonable, and the burden is on the General Counsel to rebut this presumption.
The Postal Service will pay or reimburse any adverse judgment obtained after an adjudication on the merits, or any reasonable settlement in which liability is reasonably likely, and the relative exposure exceeds the settlement amount, in connection with any matter indemnifiable under 668.321. The Postal Service will pay such judgment or settlement within 30 days following delivery of a written request for payment or reimbursement to the General Counsel. The request must include the amount of the judgment or settlement and sufficient detail to allow the General Counsel to determine whether such costs are subject to reimbursement hereunder.
Notwithstanding any other provision of 668.32, indemnification is conditioned on the agreement of the person seeking advancement, payment or reimbursement to undertake to repay such amount if a final non-appealable adjudication determines that such person is not entitled to be indemnified by the Postal Service as authorized.
If the General Counsel determines that paying the costs for which advancement, payment or reimbursement is sought is not in the Postal Service’s best interests and, therefore, such costs are not subject to advancement, payment or reimbursement in whole or in part, the General Counsel will promptly notify the person seeking advancement and include the reason(s) for the decision. Within 30 days of receiving notice of the decision, the person may appeal in writing the General Counsel’s decision to the Compensation and Governance Committee of the Board of Governors.
The Compensation and Governance Committee will review the decision of the General Counsel de novo based on the same criteria as the General Counsel (reasonableness and the best interests of the Postal Service), and make a recommendation to the Board of Governors within 30 days of the appeal. In its sole discretion, the Board of Governors will determine whether to adopt the recommendation of the Compensation and Governance Committee reasonably promptly, and, in no event, more than 60 days from the date of the Compensation and Governance Committee’s recommendation.
A person covered by 668.3 may apply to the general counsel for payment or reimbursement for any adverse judgment or settlement. The general counsel will exercise discretion according to the criteria in 668.23.
