39.3.1  Claims, Suits, and Related Matters

39.3.1.1  (08-11-2004)
Federal Tort Claims Act

  1. This section concerns those situations where an administrative claim or suit has been filed for property damages and/or personal injury against the United States under circumstances where the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, is the exclusive mode of relief.

  2. The legal aspects of these claims are the responsibility of the Associate Chief Counsel (GLS), Claims, Labor & Personnel Law (CLP) Branch. However, from time to time, Area Counsel (GLS) will be requested to obtain information or perform other legal services in some of these cases.

39.3.1.1.1  (08-11-2004)
Action upon Receipt of Administrative Claims for Damages

  1. Administrative claims filed with the Agency in any office are to be forwarded to the Claims Manager, CC:GLS, under the procedures set forth in IRM 1.14.5, Occupational Safety and Health Program. The Claims Manager has been delegated settlement authority in relation to such claims under the FTCA. Upon receipt of such a claim, the Claims Manager determines whether a legal opinion is required as to a recommendation of the disposition of the claim.

  2. Claims which do not need a legal opinion are claims that satisfy all of the criteria below. The Claims Manager prepares a memorandum recommending payment for such claims and forwards the memorandum to the Chief, CLP, for legal review.

    1. The claim is for property damage and minor personal injury only.

    2. There is no legal question regarding scope of employment or liability.

    3. The appropriate amount of damages is subject to certainty.

  3. Claims that do not satisfy the above criteria require a legal opinion which sets forth a recommendation regarding the claim. Such a claim is forwarded to the Chief, CLP. The claim is then assigned to an attorney or paralegal for preparation of the law and fact memorandum.

  4. Any additional information received by the Claims Manager pursuant to an assigned claim will be associated with that claim.

39.3.1.1.2  (08-11-2004)
GLS Action upon Receipt of Claim

  1. The claim and all accompanying materials must be examined to determine if a properly executed and completed claim has been filed. The claim must contain the following required information:

    • The signature of the claimant or an authorized representative

    • A sum certain

  2. The claim must be filed within the two year statute of limitations commencing on the date of the occurrence of the alleged wrongful act or negligence.

39.3.1.1.3  (08-11-2004)
Information Gathering

  1. If information which has not been supplied is necessary to adjudicate the claim, GLS should prepare a letter requesting that such information be expeditiously submitted. If the requested information has not been received within a reasonable length of time, a second letter should follow. Such letters should be sent by certified mail, return receipt requested.

  2. Evidence and information regarding proof of damages must be supplied in accordance with the provisions of 28 C.F.R. § 14.4.

  3. The following documentation is desirable for property claims in amounts less than $1,500.00:

    • Standard Form 91, Motor Vehicle Accident Report (where applicable)

    • Standard Form 92-A, Report of Accident Other Than Motor Vehicle (where applicable)

    • Statements bearing on the employee’s scope of employment if other than motor vehicle accident

  4. If the claim is for personal injury and/or property damage of $1,500.00 or more, then in addition to the appropriate forms set forth above, a formal investigation report may be requested by the assigned attorney or paralegal through the Claims Manager. The employee may also be contacted for additional information.

39.3.1.1.4  (08-11-2004)
Research on the Claim

  1. Once the claim has been perfected, the facts and the legal issues raised by those facts must be analyzed by the assigned attorney or paralegal.

  2. In determining whether the United States is liable under the FTCA, an examination of the laws of the state where the act occurred is required. This includes the statutes and court decisions as to the issues of negligence and scope of employment.

39.3.1.1.5  (08-11-2004)
Recommendation Regarding Disposition of a Claim

  1. For claims which require a legal opinion (see CCDM 39.3.1.1.1(3)), a law and fact memorandum is prepared by the assigned attorney or paralegal and sent to the Claims Manager recommending an impartial disposition of the claim. This memorandum should give a concise analysis of:

    • All pertinent facts surrounding the case

    • The legal issues presented by the facts

    • The relevant law of the state involved and any relevant federal statutory provisions

    • Conclusions and recommendations on the claim

  2. For claims which do not require a legal opinion (see CCDM 39.3.1.1.1(2)), the Claims Manager prepares a memorandum regarding payment of the claim. Claims are subject to legal review. Memoranda regarding such claims prepared by the Claims Manager must be approved by an attorney.

39.3.1.1.6  (08-11-2004)
Referrals to the Department of Justice

  1. Any proposed award, compromise, or settlement of an administrative claim in excess of $25,000 requires prior written approval of the Attorney General or designee. In addition, any administrative claim, which in the opinion of the agency involves a new precedent or a new point of law, a question of policy, a question of whether the United States is or may be entitled to indemnity or contribution, or which may control the disposition of a related claim which exceeds $25,000, requires prior consultation with the Department of Justice (DOJ) as indicated above. Any proposed award, compromise, or settlement requiring approval or consultation with the DOJ under the provisions of 28 C.F.R. §14.6 must be reviewed by the Committee on Tort Claims of the Treasury Department prior to referral to the Attorney General.

  2. If the claim requires the approval of or consultation with the Attorney General, a memorandum of law and fact shall be prepared by the assigned attorney or paralegal and submitted to the Claims Manager for written approval. Additionally, a letter transmitting the matter to the Committee on Tort Claims of the Department of Treasury will be prepared for the signature of the Claims Manager. If the claim is approved by the Committee on Tort Claims for the Treasury Department, the matter shall be transmitted to the Assistant Attorney General, Civil Division, DOJ, by the General Counsel of the Treasury Department.

39.3.1.1.7  (08-11-2004)
Letter to the Claimant Regarding Disposition of the Claim

  1. A letter to the claimant is prepared and signed by the Claims Manager. The letter is addressed to the claimant or authorized representative and, if the claim is allowed in full, the letter is sent by regular mail. All letters will briefly identify the circumstances out of which the claim arose and the amount claimed. They will also incorporate the proposed action set forth in the legal memorandum.

  2. If the claimant is offered an amount that is smaller than that claimed, then a general statement of why such an amount is offered may be set forth. If a lesser amount is offered or if the claim is totally denied, then a paragraph must be inserted in the letter which informs the claimant of the right to file suit within the six-month statutory time limitation and such letter must be sent by certified mail, return receipt requested. An example of such a notice is as follows: "In the event you are dissatisfied with this action, you may file suit in an appropriate United States District Court no later than six months after the date of mailing of this notification." 28 U.S.C. § 2401(b).

39.3.1.1.8  (06-03-2009)
Preparation of Voucher

  1. In those cases in which a claim is being allowed in full or an offer of settlement is being made, the Claims Manager will prepare a Voucher For Payment Under the Federal Tort Claims Act. Payment will be made upon receipt of the signed voucher.

  2. The voucher will be made payable to the claimant unless the claimant is represented by counsel. If the claimant has counsel, the voucher shall designate both the claimant and counsel and be mailed to the address of counsel.

  3. In those cases concerning property damage in which there is a deductible, the deductible will be paid only to the claimant upon receipt of a claim for the deductible. The insurance carrier will only be paid the non-deductible portion of the claim unless the insured states in writing that he or she authorizes the insurer to file a claim on his or her behalf.

  4. Upon receipt of the signed voucher in the amount of $2,500.00 or less, the Claims Manager will forward the voucher to the Office of the Chief Financial Officer, Internal Financial Management Branch, Beckley Finance Center, for payment.

  5. When the amount of the award is more than $2,500.00, the Claims Manager will forward the signed voucher to the Judgment Funds Group, Financial Management Services, for payment.

39.3.1.1.9  (08-11-2004)
Actions upon Claimant’s Request for Reconsideration

  1. If a claimant submits a claim for reconsideration under the provisions set forth in 28 C.F.R. § 14.9(b), prior to initiating suit or the expiration of the six-month period for filing suit, the claim is forwarded by the Claims Manager to the Chief, CLP. The claim is examined to see if additional facts or evidence warrant further consideration.

  2. A formal memorandum on the claim will be prepared by the assigned attorney or paralegal only if new or intervening evidence has been submitted which will alter the original recommendation of Counsel.

39.3.1.1.10  (08-11-2004)
Final Closing of Administrative Claim

  1. Once action has been taken on an administrative claim by the Claims Manager, the case is closed.

39.3.1.1.11  (08-11-2004)
Litigation under the Federal Tort Claims Act

  1. Suits brought under the FTCA will be referred to the Associate Chief Counsel (GLS) for coordination with DOJ and for preparation of a litigation report.

  2. In those instances in which the suit is brought against the United States and/or its employees in a state court, immediate action will be initiated by the assigned attorney or paralegal to have the appropriate U.S. Attorney remove the suit to federal district court. See CCDM 39.3.1.4. In suits in which an individual employee is named as a defendant, the U.S. Attorney may request that the employee involved request and obtain representation by the United States.

  3. After all available factual information pertaining to the suit in question has been obtained, a litigation report will be prepared in CLP Branch, Associate Chief Counsel (GLS), and will be submitted to the official designated in the DOJ letter to receive the report.

39.3.1.2  (06-03-2009)
Small Claims Act

  1. The Small Claims Act, 31 U.S.C. § 3723, allows for payment of damages to individuals for privately owned property. It can sometimes be used to pay claims that would be barred under the Federal Tort Claims Act and the same administrative procedures apply. (See CCDM 39.3.1.1).

  2. The legal aspects of these claims are the responsibility of the Associate Chief Counsel (GLS), Claims, Labor & Personnel Law (CLP) Branch. However, from time to time, Area Counsel (GLS) will be requested to obtain information or perform other legal services in some of these cases.

  3. The Claims Manager prepares and signs a letter to the claimant notifying him or her of the disposition of the claim and of the fact that there are no appeal rights under the Small Claims Act.

  4. Pursuant to Delegation Order 1-4 (IRM 1.2.40.4), the Claims Manager does not have the authority under the Small Claims Act, to consider, ascertain, adjust, or determine claims for bank charges as provided in Policy Statement 5-39 (IRM 1.2.14.1.11).

39.3.1.3  (06-03-2009)
Suits for the Recovery of Monetary Damages Where the Federal Tort Claims Act Does Not Serve as the Sole Jurisdictional Basis

  1. The Associate Chief Counsel (GLS), has been delegated the responsibility for coordinating with DOJ the defense of civil actions for monetary damages brought against the United States, the Agency itself, and/or individually named employees for alleged actions taken by employees in the due performance of their official duties. For instance, such suits may be brought for alleged violations of constitutional rights, i.e., Bivens-type actions and alleged violations of civil rights protected by statute. In some of these cases the complaint will seek monetary damages as well as injunctive or other relief concerning a real or imagined tax problem. If the principal issue in such cases is damages under the FTCA or against an employee in an individual capacity, the Associate Chief Counsel (GLS) will handle the matter and coordinate the case with the Office of the Associate Chief Counsel (PA) in significant cases or those involving novel issues, or the appropriate SBSE office in other cases.

  2. Area Counsel has been delegated the authority to prepare litigation reports to coordinate this type of case with DOJ except in cases in which an administrative claim under the Federal Tort Claims Act has been filed by the plaintiff. In that situation, the the attorney or paralegal assigned to the administrative claim will provide DOJ with litigation support. CLP may provide litigation support to DOJ in the following situations:

    1. The actions complained of occurred in more than one Area Counsel geographical region or the employees named as defendants have posts of duty in more than one Area Counsel geographical region.

    2. An Area Counsel office is disqualified because of a potential conflict of interest.

  3. Once a decision has been made to request representation from DOJ, the proper Division of DOJ shall be notified. The GLS attorney should advise the trial attorney assigned to the case of the suit and inform the Assistant U.S. Attorney that representation for the employee or former employee has been or will be requested by the Agency. The same information should then be shared with the U.S. Attorney for the district where the civil suit was filed.

39.3.1.3.1  (08-11-2004)
Procedures to Maintain Confidentiality of Information and to Avoid Conflict of Interest

  1. The attorney-client relationship between employee-defendants and Chief Counsel attorneys assigned to these types of cases will be governed by the Attorney General’s Representation Guidelines set forth in 28 C.F.R. §§ 50.15 and 50.16.

  2. Because both CLP and the Area Counsel offices also handle personnel actions, there may be times when an office needs to disqualify itself from either the personnel matter or the civil litigation matter in which the employee is named as a defendant. The Branch or office will permanently disqualify itself, and all attorneys in the office, from any personnel action against an employee based in any degree on conduct which is the basis of a civil action against the employee where the office has begun representation of the employee as provided in this section. Similarly, the Branch or office will permanently disqualify itself from representation of an employee in any civil litigation of the type here described if the office has begun representation of the Service or Counsel in any personnel action against the employee, regardless of the merits of such action. Matters in which such conflicts arise will be referred to the Associate Chief Counsel (GLS) through the Chief, CLP, for reassignment to another Area Counsel office or to CLP, as appropriate.

  3. Isolation of Files and Information. When the Associate Chief Counsel (GLS) has been involved in providing or determining whether representation should be provided in a civil action against an employee and a personnel action arises involving the same employee out of the same facts and circumstances, then all possible efforts (including the isolation of files) shall be taken to insure that materials and information relating to the civil action are not available to GLS attorneys involved in the personnel action. GLS attorneys will share pertinent portions of the case files with attorneys in other Chief Counsel functions as necessary when litigation involves issues within the jurisdiction of those functions.

39.3.1.3.2  (06-03-2009)
Coordination with DOJ

  1. Defense of actions involving claims against the United States before federal and state courts will, in most instances, be undertaken by DOJ.

  2. Upon receipt of a complaint, GLS should confirm that DOJ is aware of the complaint.

  3. If an individual employee receives a request for a waiver of service of summons, the GLS attorney assigned to the case should contact DOJ to discuss whether the waiver should be signed.

  4. If, after being informed of the role of the attorney in the Office of Chief Counsel assigned to the case and the attorney’s relationship with the employee defendant, that employee elects to request representation by Government counsel, the GLS attorney shall send the employee a Letter of Eligibility to be Represented by Government Counsel ( See Exhibit 39.3.1-1.) and a Form DOJ-399, Acknowledgment of Conditions of Department Representation .

  5. A copy of the signed Letter of Eligibility and the original of the Form DOJ-399 will be sent to DOJ with a letter containing a summary of available factual information, our findings as to whether the employee was acting within the scope of his employment, and our recommendation for or against providing representation.

  6. Information obtained by the GLS attorney concerning the complaint shall be covered by the attorney/client privilege whether or not representation is terminated or the office recommends that DOJ not represent the employee.

  7. The GLS attorney should explain to the employees that any representation afforded individuals in these cases is based upon the fact that since Agency employees are involved the Agency has an interest in the outcome of the litigation, but if protecting the interest of an individual conflicts with the obligation of protecting the interest of the Agency it will be necessary for the attorney to disqualify himself/herself.

  8. GLS will furnish DOJ a litigation report for the defense of the Government’s or employee-defendant’s conduct.

  9. The GLS attorney will render whatever assistance is necessary by promptly securing further documentation as requested. The attorney must obtain a status report on the case from DOJ every 60 days.

39.3.1.3.2.1  (06-03-2009)
Defendants Other than Employees Sued in Their Individual Capacities

  1. As previously noted, plaintiffs in this type of litigation often name the United States, the Treasury Department, the Service, the Secretary of the Treasury, or the Commissioner in their official capacity as the defendant or as one of many defendants.

  2. Where the litigating DOJ attorney agrees that the suit is against the employees in their official capacities only, neither scope of employment facts nor requests for representation is necessary with respect to any of these defendants. Every effort should be made to avoid having the Secretary or the Commissioner execute an affidavit.

39.3.1.3.3  (06-03-2009)
Coordination within the Office of Chief Counsel

  1. Coordination with the Associate Chief Counsel (Procedure and Administration). In various cases a plaintiff will seek monetary damages under I.R.C. § 7433 or injunctive or other relief concerning a real or imagined tax problem in addition to seeking damages under the FTCA or from individual employees. The jurisdiction of the Associate Chief Counsel (GLS) and Associate Chief Counsel (PA) overlap in these cases. If the principal issue in such cases is damages under the FTCA or from individual employees, the Associate Chief Counsel (GLS) will handle the matter and coordinate with the Associate Chief Counsel (PA) in significant cases or those involving novel issues, or the appropriate Associate Area Counsel (SBSE) in other cases. On the other hand, if the principal issue in such cases is injunctive or other relief concerning a tax problem, the matter will be handled by the appropriate Associate Area Counsel (SBSE) and coordinated with the Associate Chief Counsel (GLS). The determination of what is the principal issue in these cases must be made on a case-by-case basis. These suits will be fully coordinated among the appropriate offices.

  2. In the event that disclosure of tax information is involved, it is the responsibility of the GLS attorney assigned to the case to ensure that appropriate coordination takes place with the Associate Chief Counsel (PA). Further, section 7431 cases often contain Privacy Act (5 U.S.C. § 552a) counts that require coordination with P&A.

39.3.1.3.4  (08-11-2004)
Payment of Judgments

  1. The Federal Tort Claims Act contains specific authorization for the payment of judgments in 28 U.S.C. § 2414.

  2. I.R.C. § 7423 authorizes reimbursement of an employee for damages and costs recovered against the employee for acts done in the due performance of official duty. Although reimbursement is discretionary, the Service can virtually assure an employee defendant, who was acting within the scope of the employee’s official duties that the Government will pay a judgment rendered against the employee.

39.3.1.4  (08-11-2004)
Removal of Actions Brought in State Court

  1. In exercising its delegated authority, GLS will encounter several types of cases in which the removal of a proceeding from a state court to a federal district court is necessary or desirable. This section describes the procedures for use in the following types of cases.

39.3.1.4.1  (08-11-2004)
Suits Cognizable Under the Federal Tort Claims Act

  1. The type of case most frequently encountered involves employees who are sued individually in state court for damages, usually arising from automobile accidents, where the employee was acting within the scope of employment. Since such a case is cognizable under the FTCA and the exclusive remedy is against the United States, the assigned GLS attorney or paralegal shall prepare a letter to the appropriate U.S. Attorney requesting removal to a federal district court and substitution of the United States as the defendant.

  2. In instances where the plaintiff has not exhausted his administrative remedies, GLS Area Counsel has the responsibility for assisting the DOJ in arranging for dismissal of the case upon removal.

39.3.1.4.2  (08-11-2004)
Bivens-Type Suits

  1. Suits for damages brought in state courts against federal employees or the United States and its agencies where the employee named as the defendant was acting within the scope of his authority, commonly called Bivens-type suits, may be removed to a federal district court pursuant to 28 U.S.C. §1442. The assigned attorney or paralegal shall request that the U.S. Attorney obtain such removal.

39.3.1.4.3  (08-11-2004)
Suits Charging Violations of State Criminal Laws

  1. Suits brought in a state court charging a federal employee with a state criminal violation as a result of acts taken under color of office may, under appropriate circumstances, be removed to federal district court pursuant to 28 U.S.C. §1442.

  2. The removal of these actions is an extremely sensitive area and caution should be exercised in recommending such removals to DOJ. Before making a recommendation for the removal of a case of this type, the GLS attorney should thoroughly research the law in this area and closely analyze the facts to be sure that the matter falls within decided opinions and the interest of the Government will be protected by such action.

  3. In determining whether such a recommendation to DOJ should be made, the attorney shall be cognizant of the time limits prescribed in 28 U.S.C. §1446(c)(1) for filing a petition for removal of a criminal prosecution.

  4. In non-routine cases, GLS attorneys shall consult with the Associate Chief Counsel (GLS) or either Deputy Associate Chief Counsel (GLS), prior to recommending the removal of such a case.

39.3.1.4.4  (08-11-2004)
General Procedures for Removal Actions

  1. The removal of a case should be coordinated by the assigned attorney or paralegal directly with the appropriate Office of the U.S. Attorney.

  2. In all removal cases where an employee is individually named as a defendant, the GLS attorney should assist that employee in making a request for representation as required by DOJ.

  3. The attorney should be cognizant of the time limits prescribed for removal of the particular type of actions as prescribed by:

    • 28 U.S.C. § 1446 for Bivens-type actions

    • 28 U.S.C. § 2679(d) for actions under the FTCA

    • 28 U.S.C. § 1446(c)(1) for criminal prosecutions

  4. The attorney assigned to the matter is responsible for promptly furnishing DOJ and/or the U.S. Attorney with all available data upon which a removal action can be based.

  5. Once the petition or certification has been properly filed in the appropriate federal court, the matter will be automatically removed. There is no requirement for a hearing.

39.3.1.5  (06-03-2009)
Military Personnel and Civilian Employees’ Claims Act of 1964

  1. The Military Personnel and Civilian Employees’ Claims Act of 1964, 31 U.S.C. § 3721, authorizes the heads of federal agencies, or their designees, to settle and pay the claim of an officer or employee of the agency for damage to, or loss of, personal property incident to the service of the officer or employee. Treasury regulations implementing this Act may be found at TD P 32-13. Commissioner Delegation Order 1-4 (formerly D.O. 23 (Rev. 15) dated May 5, 1997), has delegated to the Claims Manager, CC:GLS, the authority to settle and pay employees’ personal property claims.

  2. The Associate Chief Counsel (GLS), CLP Branch, performs the legal work of the office relating to the MPCECA. The Claims Manager may request legal advice on a claim, and the GLS attorney will prepare a memorandum which will include:

    1. The facts surrounding the claim and legal issues upon which the claim was originally referred

    2. The legal issues upon which the claim was presented along with any additional issue

    3. The essential facts upon which approval or disapproval of the claim may turn

    4. The law as provided for by relevant statutory and regulatory provisions

    5. The conclusions and recommendations regarding the claim

  3. Legal review of claims over $500 is required. The attorney reviewing the claim should complete section 12 of the form found at TD P 32-13.1.

  4. The Claims Manager will prepare a letter to the claimant either approving the claim in full or in part, or, if disapproving it, briefly setting forth the reasons why it has been disapproved.

  5. If a claimant whose claim is denied in whole or in part appeals the Claims Manager’s decision, the Deputy Associate Chief Counsel (GLS) will review the claim. The attorney who reviewed the initial claim will prepare a memorandum for the Deputy’s signature and recommended action, as well as a memorandum outlining the relevant facts and law.

  6. The attorney will notify the claimant of the outcome on appeal.

39.3.1.6  (08-11-2004)
Legal Advice Regarding Federal Claims Collection Act As Amended

  1. The Federal Claims Collection Act, as amended, 31 U.S.C. §§ 3701, 3711, et seq., provides for the collection, compromise, termination, suspension, and referral to DOJ of non-tax and non-interagency debts owed to the United States.

  2. Commissioner Delegation Order No. 111 (Rev. 13) dated July 31, 1996, provides authorization to various IRS functions, including the Claims Manager, GLS, to collect claims and to compromise, terminate, or suspend claims collection activity, and requires the advice of Counsel when the claims reach certain dollar thresholds.

  3. The Associate Chief Counsel (GLS) has been delegated the responsibility to supervise, coordinate, and perform the legal work of the office for claims or suits brought under the Federal Claims Collection Act, as amended. Area Counsel and CLP Branch provide the legal advice and litigation support in such matters as provided in Delegation Order 111.

  4. Advice on claims collection matters should conform with Title 31 C.F.R. Part 900 which provides guidance on claims collection matters including compromise, suspension, and termination of claims collection as well as referral of claims collection matters to DOJ.

39.3.1.7  (08-11-2004)
Legal Memoranda Prepared on Questions Involving Potential Litigation

  1. All GLS attorneys shall open their legal opinions on subjects where litigation can reasonably be anticipated with a statement that the advice and recommendations contained therein are provided in anticipation of litigation.

39.3.1.8  (06-03-2009)
Requests for Government Representation of Non-Government Defendants

  1. DOJ will, under some circumstances, provide representation to non-Government defendants. Representation has been provided to spouses of Agency employees named as defendants in damage suits against employees arising from the performance of their duties. Informants and other non-Government defendants have been afforded representation where it has been shown that they acted under the direction and control of the Agency. Absent compelling circumstances, DOJ will not provide representation to independent contractors or others who do business with the Service.

  2. This section does not apply to former employees sued for actions undertaken while they were IRS employees. Such persons are treated as employees for representation purposes.

39.3.1.8.1  (08-11-2004)
General Instructions

  1. A non-Government defendant served with process who desires representation by Government counsel should immediately contact GLS.

  2. The attorney who receives notification of the suit from the non-Government defendant and a request for Government representation will immediately advise the non-Government defendant of the information contained in paragraphs (3) through (8).

  3. Whether legal representation will be afforded to a non-Government defendant is a discretionary matter to be determined by DOJ.

  4. The Government is also the client of the attorney who is providing representation to the non-Government defendant sued individually, thereby creating a potential conflict of interest. Whenever the interest of the defendant diverges from that of the United States, as when the defendant confides information to the attorney which tends to show that the defendant has committed a crime, representation of the defendant by Government counsel will cease. In such event, subject to the limitation specifically set forth below, confidential communications concerning the subject matter of the suit in the possession of the Government attorney will not be told or given to anyone without the written permission of the non-Government defendant.

  5. Confidential communications given to the GLS attorney during the representation process which relate to the case will be protected by the attorney/client privilege in the same manner that such communications to a private sector attorney would be protected.

  6. If DOJ furnishes the non-Government defendant representation, the assigned GLS attorney may furnish factual material, legal defenses, recommendations, and assistance to DOJ as requested.

  7. GLS attorneys cannot provide legal assistance to non-Government defendants with respect to an investigation for criminal activity related to the litigation.

  8. Legal assistance provided by the assigned GLS attorney will be stopped if:

    1. The non-Government defendant fails to faithfully provide all the information he/she has regarding the case.

    2. A determination is made that the defendant’s actions for which he is being sued were criminal.

    3. The non-Government defendant becomes the target of a criminal investigation.

    4. The non-Government defendant is indicted as a result of the actions for which he is being sued.

    5. It is determined that the interest of the non-Government defendant does not coincide with the interest of the United States.

  9. If, after having the conditions above explained, a non-Government defendant wishes to request representation by Government attorneys, he shall sign the letter sent him informing him of his possible eligibility to be represented by Government counsel.

39.3.1.8.2  (06-03-2009)
Instructions to Attorneys

  1. Once a non-Government defendant has been sued and has requested representation, the attorney assigned to the case will immediately send the non-Government defendant a copy of this section and a letter informing the defendant of his possible eligibility to be represented by Government counsel. See Exhibit 39.3.1-2..

  2. All communications concerning the complaint that are obtained by the attorney assigned to the case will be treated as confidential as previously explained in this section.

  3. The GLS attorney assigned to the case shall prepare a complete account of the facts surrounding the incident, including:

    1. The terms of the Agency’s contract with the non-Government defendant, if appropriate

    2. A statement detailing the involvement and supervisory actions of Agency employees in regard to the activities complained of

    3. Factors indicating the projected benefit for the administration of the internal revenue laws should representation be afforded to the non-Government defendant, and factors indicating any prospect of actual harm to the Government if legal representation is not afforded to the non-Government defendant

  4. The request for representation shall be transmitted to DOJ, accompanied by a complete exposition of the facts, together with GLS’s analysis of the Government’s interest in providing the requested representation.

  5. Representation requests should be submitted to the appropriate Division at DOJ. If a request for representation is denied, GLS may request a meeting with the DOJ Representation Committee to present the office’s position.

Exhibit 39.3.1-1  (08-11-2004)
Letter of Eligibility to be Represented by Government Counsel

Re:
Dear:
 
  We are informed that you have been sued in your individual capacity for damages in the above-entitled action. Since this matter appears to have arisen as a result of your being an employee of the Internal Revenue Service (or the Office of Chief Counsel), you may be eligible to be represented by a Government attorney. Such representation by Department of Justice and Chief Counsel attorneys will be subject to the express terms and conditions of the Attorney General’s Representation Guidelines set out in 28 C.F.R. §§50.15 and 50.16, which are summarized in the attached Acknowledgment of Conditions of Department Representation. Accordingly, please read these conditions in their entirety.
  Your request for representation will be denied by the Department of Justice if it determines that you did not act within the due performance of your official duties. Additionally, if you have a very short period in which to answer the complaint and there is a delay by the Department of Justice in approving your request for representation, then it may be advisable for you to obtain temporary counsel.
  Please note that § 9 of the Acknowledgment of Conditions of Department Representation, which accompanies this letter, incorrectly states that you will be personally responsible for the payment of any judgment rendered against you individually. Under Internal Revenue Code § 7423(2), judgments rendered against Service or Office of Chief Counsel employees for actions taken in the due performance of their official duties under the Code may be paid by the Service. Section 9 of the acknowledgment reads as it does because most Federal agencies do not have the authority to pay judgments against their employees like the Service does and the acknowledgment form was designed for government-wide use.
  If you desire to be represented by Government counsel, please sign and return both this letter and the Department of Justice Acknowledgment of Conditions. If there is anything in this letter or the Acknowledgment of Conditions which is unclear to you, please discuss it with the Chief Counsel attorney assigned to the case before you sign and return either of these documents. The attorney assigned to this case,    , may be reached at  .
Sincerely,
(NAME)
Chief Counsel
By:
 Title
 
* * * * * *
Request:
I hereby request representation by Government counsel in the above-captioned case.
Date
Signature

Exhibit 39.3.1-2  (06-03-2009)
Letter to Non-Government Defendant

Re:
Dear
  We are informed that you have been sued in your individual capacity for damages in the above-entitled action. Since this matter appears to have arisen as a result of your performance of a contractual undertaking with the Internal Revenue Service (or other reason, as appropriate), you may be eligible to be represented by a Government attorney. That is a matter to be decided by the Department of Justice in the event you seek such legal representation.
  If you decide to request representation, the Internal Revenue Service must investigate the matter and make a recommendation to the Department of Justice. The first step in this process is for you to formally request representation, if you desire to do so. Attached is CCDM 39.3.1.8, incorporated by reference into this letter, which states our general policies and instructions in such matters, and which discusses the attorney/client relationship which would arise between you and the Chief Counsel attorneys assigned to investigate the matter if you should request Government representation. Please read the CCDM section in its entirety. Your attention is especially directed to the provisions of section 2(b) and (c) of 39.3.1.8.
  Please be advised that the Government is under no obligation to provide you with legal representation, and that, even if you request such representation and we recommend that it be provided, your request will be denied by the Department of Justice if it determines, in its sole discretion, that the circumstances of this case do not warrant legal representation by the Government. The Justice Department’s determination may take some time, and you may be well advised to consult with your own private counsel and to take any steps that may be necessary to protect your interests in this matter, particularly if your answer or response to the complaint in this case is soon due to be filed.
  You should also understand that, even if you are provided with Government representation, in the event an adverse money judgment is entered against you, you will be personally responsible for the payment of that judgment.
  If you desire to be represented by Government counsel, please sign this letter and return it to this office. If there is anything in this letter or CCDM 39.3.1.8 which is unclear to you, please discuss it with the attorney assigned to this case before you sign and return this letter. The attorney assigned to this case is    , and may be reached at the following telephone number: ( ) - .
Sincerely,
(Associate Chief Counsel (GLS))
By:
Name
Title
Acknowledgment:
  I have received a copy of CCDM 39.3.1.8 and I have read it and understand the conditions stated therein concerning my being represented by Government attorneys in the above-entitled action. I accept those conditions and I want to be represented by Government counsel, including Department of Justice attorneys, in this case. I understand that the Government has not yet decided whether such legal representation will be provided to me and that the Government is in no way committed to providing such legal representation unless and until the Department of Justice notifies me in writing that such legal representation will be provided. In making this request, I am aware that I have the option of hiring a private attorney at my own expense to represent me in this case.
Date
Signature

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