28 C.F.R. § 50.16

Representation of Federal employees by private counsel at Federal expense

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(a) Representation by private counsel at federal expense or reimbursement of private counsel fees is subject to the availability of funds and may be provided to a federal employee only in the instances described in § 50.15(a) (4), (7), (10), and (11), and in appropriate circumstances, for the purposes set forth in § 50.15(a)(2).

(b) To ensure uniformity in retention and reimbursement procedures among the litigating divisions, the Civil Division shall be responsible for establishing procedures for the retention of private counsel and the reimbursement to an employee of private counsel fees, including the setting of fee schedules. In all instances where a litigating division decides to retain private counsel or to provide reimbursement of private counsel fees under this section, the Civil Division shall be consulted before the retention or reimbursement is undertaken.

(1) While the Department of Justice will generally defer to the employee's choice of counsel, the Department must approve in advance any private counsel to be retained under this section. Where national security interests may be involved, the Department of Justice will consult with the agency employing the federal defendant seeking representation.

(2) Federal payments to private counsel for an employee will cease if the private counsel violates any of the terms of the retention agreement or the Department of Justice.

(i) Decides to seek an indictment of, or to file an information against, that employee on a federal criminal charge relating to the conduct concerning which representation was undertaken;

(ii) Determines that the employee's actions do not reasonably appear to have been performed within the scope of his employment;

(iii) Resolves any conflict described herein and tenders representation by Department of Justice attorneys;

(iv) Determines that continued representation is not in the interest of the United States;

(v) Terminates the retainer with the concurrence of the employee-client for any reason.

(d) Where reimbursement is provided for private counsel fees incurred by employees, the following limitations shall apply:

(1) Reimbursement shall be limited to fees incurred for legal work that is determined to be in the interest of the United States. Reimbursement is not available for legal work that advances only the individual interests of the employee.

(2) Reimbursement shall not be provided if at any time the Attorney General or his designee determines that the employee's actions do not reasonably appear to have been performed within the scope of his employment or that representation is no longer in the interest of the United States.

(3) Reimbursement shall not be provided for fees incurred during any period of time for which representation by Department of Justice attorneys was tendered.

(4) Reimbursement shall not be provided if the United States decides to seek an indictment of or to file an information against the employee seeking reimbursement, on a criminal charge relating to the conduct concerning which representation was undertaken.

[Order No. 970-82, 47 FR 8174, Feb. 25, 1982, as amended by Order No. 1409-90, 55 FR 13130, Apr. 9, 1990]

Notes of Decisions

Cited in 8 cases (1 in the last 5 years), 1981–2024 · leading case: Evelyn Falkowski v. Equal Emp. Opportunity Comm'n, 719 F.2d 470 (D.C. Cir. 1983).

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Evelyn Falkowski v. Equal Emp. Opportunity Comm'n, 719 F.2d 470 (D.C. Cir. 1983). “”) (quoting 28 C.F.R. § 50.16 (a) (1979) (emphasis added)).”

Norman Castillo, D.O. v. United States, 707 F.2d 422 (9th Cir. 1983). “It is true that 28 C.F.R. § 50.16 (a) does allow reimbursement for expenses incurred in retaining private counsel, but only when the employee is a target of criminal investigation or when the Department of Justice has determined that a conflict of interest precludes legal…”

McCarthy v. Madigan, 503 U.S. 140 (1992). “28 CFR § 50.16 (c)(2) (1991). Nothing in the record indicates that this authority has ever been exercised to recompense a prisoner with a Bivens claim.”

Reimbursing the Attorney's Fees of Current & Former Fed. Employees Interviewed as Witnesses in the Mueller Investigation (OLC 2020). · cites it 3× “” 28 C.F.R. § 50.16 (d)(1). Witnesses interviewed by the Special Counsel who may now seek reimbursement of attorney’s fees no doubt had personal interests in seeking representation.”

Ryan v. United States, 227 Ct. Cl. 711 (Ct. Cl. 1981). “Plaintiff further argues that private counsel was retained pursuant to the terms of 28 C.F.R. § 50.16 , since the Justice Department could not advise him as to his concerns over the possible disclosure of sensitive security matters to the grand jury because of its own interest…”

Auth. of the Dep't of Health & Human Servs. to Pay for Private Couns. to Represent an Emp. Before Cong. Committees (OLC 2017). · cites it 2× “” 10 28 C.F.R. § 50.16 (d). 10 The Civil Division has informed us that it does not interpret these regulations to apply to a federal employee who appears as a witness before Congress or in civil litiga- tion, except in circumstances in which the witness is also a defendant in a…”

Snowden v. Henning (S.D. Ill. 2024). “15(a)(11); see also 28 C.F.R. 50.16). 3 This includes Attorneys Jeffrey A.”

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