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 changes the title and is a general update of this Order.

SECTION 2. AUTHORITY.

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, but does not apply to civil actions alleging violations of the Constitution (so-called Bivens actions), or which are brought alleging the violation of a statute of the United States under which such action against an employee is otherwise authorized.

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, shall deliver forthwith to his/her immediate supervisor all process and pleadings served upon him/her. The employee's supervisor shall promptly furnish a copy of such process and pleadings to the Department's Assistant General Counsel for Finance and Litigation.

.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 shall 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 Office of the General Counsel (OGC) will, time permitting, conduct an investigation into the circumstances surrounding the incident involved. The OGC 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 shall 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 Administrative Order 209-7, dated May 21, 1969.

Signed by: Chief Financial Officer and Assistant Secretary for Administration

Office of Primary Interest: Office of the General Counsel

Index Changes:

Add:

Defense of Tort Suits Against Federal Employees Arising

from their Official Duties 209-7

Suits Against Employees, Defense of 209-7

Delete

Defense of Suits Against Federal Employees Arising Out

of their Operation of Motor Vehicles 209-7

Motor Vehicle

Defense of Suits in Connection with 209-7