[Federal Register Volume 62, Number 27 (Monday, February 10, 1997)]
[Rules and Regulations]
[Pages 6096-6097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3241]
[[Page 6095]]
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Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 18
Indemnification of Department of Housing and Urban Development
Employees; Final Rule
Federal Register / Vol. 62, No. 27 / Monday, February 10, 1997 /
Rules and Regulations
[[Page 6096]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 18
[Docket No. FR-4143-F-01]
RIN 2501-AC34
Indemnification of Department of Housing and Urban Development
Employees
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule adds a new part 18 to title 24 of the Code of
Federal Regulations. The provisions of this rule parallel provisions
adopted by other departments and agencies, including the Departments of
Justice (28 CFR part 50), Treasury (31 CFR part 3), Interior (43 CFR
part 22), Education (34 CFR part 60), and Health and Human Services (45
CFR part 36). The rule permits indemnification of HUD employees in
appropriate circumstances, as determined by the Secretary.
EFFECTIVE DATE: March 12, 1997.
FOR FURTHER INFORMATION CONTACT: Sam E. Hutchinson, Associate General
Counsel for Human Resources, Department of Housing and Urban
Development, 451 Seventh Street, S.W., Washington, D.C., 20410, (202)
708-0888. (This is not a toll-free number.) Hearing-impaired or speech-
impaired individuals may access the voice telephone listed in this rule
by calling the Federal Information Relay Service during working hours
at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: HUD does not at present have a published
policy regarding indemnification of Department employees who are sued
in their individual capacities as a result of conduct taken within the
scope of their employment. Lawsuits against Federal employees in their
individual capacities have occurred since the Supreme Court decision in
Bivins v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971).
The potential for adverse judgments against a Federal employee for
actions taken within the scope of employment is detrimental to both the
individual employee and the Federal government. The prospect of
personal liability and the uncertainty as to what conduct may result in
a lawsuit against the employee personally tend to intimidate all
employees, to impede creativity, and to stifle initiative and decisive
action. Employees' fears of personal liability affect government
operations, decisionmaking, and policy determinations.
The Department believes that lawsuits against federal employees in
their individual capacities seriously hinder the effective functioning
of the Department. A published statement of HUD policy regarding
indemnification of its employees will help alleviate this problem.
HUD policy permits, but does not require, the Department to
indemnify a Department employee who suffers an adverse judgment, or
other monetary award, provided that the conduct giving rise to the
award was taken within the scope of employment and indemnification is
in the interest of the United States, as determined by the Secretary or
designee, in his or her discretion. The policy also permits the
Department to settle a personal damage claim against a Department
employee. Absent exceptional circumstances, the Department will not
settle a personal damage claim before entry of an adverse judgment. A
notification procedure which should be followed by an employee sued in
his or her individual capacity is provided. Questions regarding
representation of the employee will be determined by the Department of
Justice. Any payment, either to indemnify or settle, is contingent upon
the availability of appropriated funds of the Department.
These regulations apply to actions pending against Department
employees as of the effective date of the regulations and to actions
commenced after that date.
Other Matters
Justification for Final Rule
In general, the Department publishes a rule for public comment
before issuing a rule for effect, in accordance with its own
regulations on rulemaking, 24 CFR part 10. However, part 10 does
provide for exceptions from that general rule where the Department
finds good cause to omit advance notice and public participation. The
good cause requirement is satisfied when prior public procedure is
``impracticable, unnecessary, or contrary to the public interest.'' (24
CFR 10.1) The Department finds that good cause exists to publish this
rule for effect without first soliciting public comment, in that public
procedure is impracticable, unnecessary, and contrary to the public
interest. This rule makes clear the Department's policy that, at its
discretion, the Department may indemnify a Department employee who
suffers an adverse judgment, or other monetary award, provided that the
conduct giving rise to the award was taken within the scope of
employment, and indemnification is in the interest of the United
States, as determined by the Secretary or designee.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
set forth in this final rule do not have Federalism implications and,
thus, are not subject to review under the Order. Nothing in the rule
implies any preemption of State or local law, nor does any provision of
the rule disturb the existing relationship between the Federal
Government and State and local governments.
Executive Order 12606, The Family
The General Counsel, as the designated Official under Executive
Order 12606, The Family, has determined that this final rule does not
have significant impact on family formation, maintenance, and general
well-being, and, thus, is not subject to review under the Order. This
rule applies to actions pending against Department employees only.
Environmental Finding
This notice is categorically excluded from the requirements of 24
CFR part 50, the HUD regulations which implement section 102(2)(C) of
the National Environmental Policy Act of 1969 (NEPA). [See 24 CFR
50.19(b)(3).] This notice does not require environmental review because
it does not alter physical conditions in a manner or to an extent that
would require review under NEPA or the other laws and authorities cited
at Sec. 50.4.
Regulatory Flexibility
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the
Secretary by his approval of publication of this final rule hereby
certifies that this final rule does not have a significant economic
impact on a substantial number of small entities. This rule applies to
actions pending against Department employees only.
List of Subjects in 24 CFR Part 18
Civil proceedings, Claims, Congressional proceedings, Criminal
proceedings, Federal employees, Indemnification, Judgments, Litigation,
Subpoenas, Verdicts.
Accordingly, 24 CFR subtitle A is amended by adding a new part 18
to read as follows:
PART 18--INDEMNIFICATION OF HUD EMPLOYEES
Authority: 5 U.S.C. 301; 42 U.S.C. 3535(d).
[[Page 6097]]
Sec. 18.1 Policy.
(a) The Department of Housing and Urban Development may indemnify,
in whole or in part, a Department employee (which for the purpose of
this part includes a former Department employee) for any verdict,
judgment or other monetary award which is rendered against any such
employee, provided the Secretary or his or her designee determines
that:
(1) The conduct giving rise to the verdict, judgment or award was
taken within the scope of his or her employment with the Department;
and
(2) Such indemnification is in the interest of the United States.
(b) The Department of Housing and Urban Development may settle or
compromise a personal damage claim against a Department employee by the
payment of available funds, at any time, provided the Secretary or his
or her designee determines that:
(1) The alleged conduct giving rise to the personal damage claim
was taken within the scope of employment; and
(2) That such settlement or compromise is in the interest of the
United States.
(c) Absent exceptional circumstances, as determined by the
Secretary or his or her designee, the Department will not entertain a
request either to agree to indemnify or to settle a personal damage
claim before entry of an adverse verdict, judgment or monetary award.
(d) When an employee of the Department 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 notify the head of
his or her operating component and the Associate General Counsel for
Litigation and Fair Housing Enforcement, if the supervisor is located
at headquarters, or Field Assistant General Counsel--who shall promptly
notify the Associate General Counsel for Litigation and Fair Housing
Enforcement--if the supervisor is located in the field. As used in this
section, the term ``principal operating component'' means an office in
the Department headed by an Assistant Secretary, the General Counsel,
the Inspector General, or an equivalent departmental officer who
reports directly to the Secretary. Questions regarding representation
of the employee will be determined by the Department of Justice
pursuant to 28 CFR 50.15 (Representation of Federal officials and
employees by Department of Justice attorneys or by private counsel
furnished by the Department in civil, criminal, and congressional
proceedings in which Federal employees are sued, subpoenaed, or charged
in their individual capacities).
(e) The employee may, thereafter, request indemnification to
satisfy a verdict, judgment or monetary award entered against the
employee or to compromise a claim pending against the employee. The
employee shall submit a written request, with appropriate documentation
including a copy of the verdict, judgment, award or other order or
settlement proposal, in a timely manner to the head of the employee's
principal operating component. The head of the employee's principal
operating component shall submit the written request and accompanying
documentation, together with a recommended disposition of the request,
in a timely manner to the General Counsel.
(f) The General Counsel shall seek the views of the Department of
Justice on the request. Where the Department of Justice has rendered a
decision denying representation of the employee pursuant to 28 CFR
50.15, the General Counsel shall seek the concurrence of the Department
of Justice on the request. If the Department of Justice does not concur
in the request, the General Counsel shall so advise the employee and no
further action on the employee's request shall be taken.
(g) In all instances except those where the Department of Justice
has non-concurred in the request, the General Counsel shall forward for
decision to the Secretary or his or her designee the employee's
request, the recommendation of the head of the employee's principal
operating component, the views of the Department of Justice, and the
General Counsel's recommendation.
(h) Any payment under this part, either to indemnify a Department
employee or to settle a personal damage claim, is contingent upon the
availability of appropriated funds of the Department that are permitted
by law to be utilized for this purpose.
Dated: January 28, 1997.
Dwight P. Robinson,
Acting Secretary.
[FR Doc. 97-3241 Filed 2-7-97; 8:45 am]
BILLING CODE 4210-32-P
