DAO 209-7

SECTION 1. PURPOSE.

.01 This Order prescribes procedures governing the defense of suits against employees of the Department of Commerce (the Department) arising out of alleged tortious activities within the scope of their office or employment with the Federal Government.

.02 This revision is a general update of this Order.

SECTION 2. AUTHORITY.

.01 Title 28 United States Code (U.S.C.) 2679, which is a section of the Federal Tort Claims Act (FTCA), provides that the remedy against the United States provided by the FTCA (see DAO 203-24) for damage to or loss of property, or personal injury or death resulting from the negligent or wrongful act or omission of any employee of the Federal Government while acting within the scope of their employment is exclusive of any other civil action or proceeding against the employee whose act or omission gave rise to the claim. This statutory immunity against tort liability applies to all common-law torts such as negligence and defamation, among others.

.02 The procedure set forth in this Order does not apply to civil actions alleging violations of the Constitution (so-called Bivens actions), or which allege the violation of a statute of the United States under which such action against an employee is otherwise authorized. Requests for representation in cases involving non-tort claims where the employee is named in his/her individual capacity are governed by the policy stated in 28 C.F.R. 50.15-50.16.

SECTION 3. PROCEDURE.

.01 Any employee of the Department against whom a civil action or proceeding is brought for damage to property or for personal injury or death, arising out of that employee's official duties, must promptly deliver to his/her immediate supervisor all process and pleadings served upon him/her. The employee's supervisor must promptly furnish a copy of such process and pleadings to the Department's Assistant General Counsel for Employment, Litigation, and Information.

.02 In the case of summary or extraordinary process against the employee, wherein immediate defensive action may be necessary, the employee or his/her immediate supervisor must promptly notify the United States Attorney for the district encompassing the place wherein the action or proceeding is brought.

.03 Upon receipt of the summons or complaint, the Assistant General Counsel for Employment, Litigation, and Information, or his designee, will, time permitting, investigate the circumstances surrounding the incident involved. The Assistant General Counsel will then promptly deliver a copy of such documents along with a report and recommendation regarding scope of employment to the United States Attorney for the district encompassing the place wherein the proceeding is brought, with a copy to the Torts Branch, U.S. Department of Justice (DOJ).

.04 Upon certification by the DOJ that the defendant employee was acting within the scope of his/her office or employment at the time of the subject incident, DOJ will defend any civil action brought in any court against the employee or his/her estate. Such certification by DOJ automatically deems the action to be one against the United States.

.05 Upon certification by DOJ that the employee was within the scope of his/her employment, DOJ will seek removal of the case to the appropriate U.S. District Court and move to dismiss the action against the employee and substitute the United States as sole defendant.

SECTION 4. EFFECT ON OTHER ORDERS.

This Order supersedes Department Administrative Order 209-7, dated March 27, 1997.

Signed by: Acting Chief Financial Officer and Assistant Secretary for Administration

Office of Primary Interest: Office of the General Counsel