27 / 138
27
DoDEA School Health Services Manual 2942.0 Volume 1 Revised: 2016 DRAFT
the General Counsel will require an employee seeking DoJ assistance to produce a
request for legal representation and a copy of the summons and complaint or other
legal papers. The DoDEA Office of the General Counsel will forward the employee’s
request for assistance with all available factual information to the DoJ with a
recommendation as to whether representation should be provided.
The DoDEA Office of the General Counsel, initially, and then the DoJ will
determine whether DoJ representation is appropriate based upon a consideration as to
whether the employee’s actions giving rise to the suit reasonably appear to have been
performed within the scope of his or her Federal employment and that it is in the
interests of the United States to provide the requested representation. See 28 CFR §
50.15(a).
When the United States is also named as a party defendant, it may seek the
dismissal of the lawsuit against the individual employee and seek to substitute the
United States as the sole party defendant. Alternatively, if the DoJ determines that the
employee’s conduct is within the scope of official duties and that representation serves
the interests of the United States, it may provide representation for the individual.
DoJ will not provide representation if the conduct is outside the scope of the
employee’s official duties and not in the interests of the United States. DoJ
representation is generally not available in a Federal criminal proceeding or
investigation or in a civil case if the employee is the subject of a Federal criminal
investigation concerning the act or acts for which he or she seeks representation.
If the DoJ agrees to provide representation for an individual in a legal action, it
will impose conditions on that representation. The DoJ provides a list of terms and
conditions of representation. See 28 CFR § 50.15(a). Upon formal approval of
representation, the DoJ litigating attorney will ask the DoDEA employee to execute a
Form 399 that describes the limitations of DoJ representation so that the client may be
fully informed before he or she enters into an attorney-client relationship with the
litigating attorney.
The most significant condition of DoJ representation is that if the interests of the
United States and those of the individual should become different during the course of
the litigation, the DoJ may terminate its representation of the individual. This is a
relatively rare event (because of the inquiries made before the decision is made to
provide representation); however, it has been known to occur. It could arise in the
event of an appeal should the Solicitor General determine that the assertion of a
position on appeal conflicts with the interests of the United States. Should the interests
of the United States diverge from those of the individual defendant, DoJ will notify the
DoDEA employee of that determination and that it intends to cease representation of
that individual.