Authority of the Department of Health and Human Services to Pay for Private Counsel to Represent an Employee Before Congressional Committees ( 2017 )

(Slip Opinion)
Authority of the Department of Health and Human
Services to Pay for Private Counsel to Represent an
Employee Before Congressional Committees
The Department of Health and Human Services may pay for private counsel to represent
an employee who has been subpoenaed to appear before the staff of two congressional
committees for a deposition at which agency counsel is not permitted to be present.
January 18, 2017
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
DEPARTMENT OF HEALTH AND HUMAN SERVICES
You have asked whether the Department of Health and Human Services
(“HHS”) may pay for private counsel to represent an employee who has
been subpoenaed to appear before the staff of two congressional commit-
tees for a deposition at which agency counsel is not permitted to be pre-
sent. 1 We advised you orally that HHS has the authority to provide private
counsel and that the provision of counsel may be considered a necessary
expense that can be paid from the applicable HHS appropriation. This
memorandum memorializes and further explains the basis for that advice.
In brief, where a congressional committee questions an agency employee
at a deposition or interview about actions performed within the scope of
her employment, it may be in the agency’s interest to provide private
counsel to represent the employee in her individual capacity when the
committee prohibits counsel for the agency from attending the deposition
or interview. An agency may thus retain and pay for such counsel if it has
both statutory authority and an available appropriation to do so, as we
conclude HHS does, based on its representations regarding the circum-
stances here. In Part I, we discuss the factual background, including the
congressional procedures applicable to this deposition. In Part II, we set
out the governing legal framework. In Part III, we apply this framework to
the facts at issue here.
1 See Letter for Karl R. Thompson, Principal Deputy Assistant Attorney General, Of-
fice of Legal Counsel, from Margaret M. Dotzel, Acting General Counsel, Dep’t of Health
and Human Services (Aug. 24, 2016) (“HHS Letter”). In preparing this opinion, we also
requested and received the views of the Civil Division of the Department of Justice. See
Memorandum for Ginger Anders, Deputy Assistant Attorney General, Office of Legal
Counsel, from Kali N. Bracey, Deputy Assistant Attorney General, Torts Branch, Civil
Division, Dep’t of Justice (Oct. 14, 2016).
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Opinions of the Office of Legal Counsel in Volume 41
I.
A.
We understand that your question was prompted by a joint oversight
investigation of the House Committee on Ways and Means and the House
Committee on Energy and Commerce (collectively, “the Committees”)
into the system of cost-sharing reduction (“CSR”) payments implemented
by HHS and the Department of the Treasury pursuant to the Patient Pro-
tection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119(2010) (“ACA”). 2 As part of their oversight investigation, the Committees
issued a subpoena to an HHS employee to appear for a deposition before
Committee staff relating to HHS’s implementation of the CSR payments.
We understand from HHS that neither the Committees nor any Executive
Branch entity has alleged or suggested that the subpoenaed employee
engaged in any misconduct. We also understand from HHS that the in-
formation sought at the deposition is related to HHS’s implementation of
the CSR payment program, including official actions taken by the em-
ployee and other Executive Branch personnel within the normal scope of
their duties in the course of that implementation.
Attached to the subpoena was a set of procedures governing the deposi-
tion. The procedures included a provision stating that agency “[w]itnesses
may be accompanied at a deposition by counsel to advise them of their
rights,” but “counsel for other persons, or for agencies under investiga-
tion, may not attend.” See 161 Cong. Rec. E21 (daily ed. Jan. 7, 2015)
(Extensions of Remarks) (Rep. Sessions submitting the “Procedures for
the Use of Staff Deposition Authority”) (“Deposition Procedures”). The
procedures also mandate that an agency witness “may refuse to answer
a question only to preserve a privilege.” Id. If a witness refuses to answer
a question to preserve a privilege, “the chair of the committee may rule on
any such objection after the deposition has adjourned.” Id. The chair may
then overrule the objection in writing and, with proper notice, “order[] a
witness to answer any question to which a privilege objection was
2 CSR payments are payments the government makes to insurers to offset the “cost-
sharing reductions” that insurers are required to provide under the ACA to eligible
individuals to reduce those individuals’ deductibles, coinsurance, copayments, and similar
charges. See U.S. House of Representatives v. Burwell, 185 F. Supp. 3d 165, 171–72
(D.D.C. 2016) (describing the CSR payments).
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Authority to Pay for Private Counsel to Represent Employee Before Congress
lodged” at a reconvened deposition. Id. “A deponent who refuses to
answer a question after being directed to answer by the chair in writing
may be subject to sanction.” Id.B.
When congressional committees seek to question employees of an
Executive Branch agency in the course of a congressional oversight
inquiry of the agency, the Executive Branch’s longstanding general prac-
tice has been for agency attorneys to accompany the witnesses. 3 See
Representation of White House Employees, 4B Op. O.L.C. 749, 754
(1980) (“[L]egitimate governmental interests which arise whenever ex-
ecutive branch employees are called to testify before the Congress . . .
[are] [o]rdinarily . . . monitored by agency counsel who accompany exec-
utive branch employees.”); Memorandum for the Deputy Attorney Gen-
eral from Theodore B. Olson, Assistant Attorney General, Office of Legal
Counsel, Re: Reimbursement of Anne M. Burford for Private Counsel
Fees at 1–2 (May 3, 1983) (“Burford I ”). That practice reflects the signif-
icant Executive Branch interests implicated by the oversight process.
The employees’ testimony occurs pursuant to the constitutionally mandat-
ed accommodation process, through which the Executive Branch provides
to Congress information necessary to perform its legislative functions
in a manner consistent with the Executive Branch’s constitutional and
statutory responsibilities and confidentiality interests. See United States
v. AT&T, 567 F.2d 121, 127, 130–31 (D.C. Cir. 1977) (“[E]ach branch
should take cognizance of an implicit constitutional mandate to seek
optimal accommodation through a realistic evaluation of the needs of the
conflicting branches in the particular fact situation.”); Memorandum for
the Heads of Executive Departments and Agencies from President Ronald
Reagan, Re: Procedures Governing Responses to Congressional Requests
for Information at 1 (Nov. 4, 1982) (providing that the “tradition of ac-
commodation should continue as the primary means of resolving conflicts
between the Branches”). Attorneys from the agency historically have ac-
companied the agency’s employees in order to protect Executive Branch
3In litigation, by contrast, the Department of Justice, under the supervision of the At-
torney General, has the exclusive authority to represent the interests of the United States,
except in situations covered by an express statutory exception. See 28 U.S.C. §§ 516, 519;
5 U.S.C. § 3106; The Attorney General’s Role as Chief Litigator for the United States,
6 Op. O.L.C. 47, 47–48 (1982).
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Opinions of the Office of Legal Counsel in Volume 41
confidentiality and other institutional interests; to assist the employees in
providing clear, accurate, and complete information in response to a
congressional oversight inquiry; to support the employee in the face of
potentially hostile questioning; and to ensure that any restrictions on the
scope of the questioning are observed. 4
In this case and in some previous oversight inquiries, however, con-
gressional committees have refused to permit agency counsel to accompa-
ny agency employees to protect Executive Branch interests at interviews
or depositions. On such occasions, we have advised that the agency may
consider obtaining alternate counsel to represent either the agency or, if
necessary, the employee. Alternate counsel may be obtained either by
detailing attorneys from another government agency or—as relevant
here—by using appropriated funds to retain and pay for private counsel.
When alternate counsel represents the agency, or represents the employee
in her official capacity, counsel’s client is the agency, not the employee. 5
See Burford I at 3 n.3 (“[S]uits or subpoenas against employees in their
4 See, e.g., Reimbursing Justice Department Employees for Fees Incurred in Using
Private Counsel Representation at Congressional Depositions, 14 Op. O.L.C. 132, 133
(1990) (“Reimbursing Justice Department Employees”) (the Department makes employ-
ees available “[i]n light of the oversight purpose of the [congressional] interviews” and
“Department counsel or other representative will normally accompany the witness” in
such interviews); Memorandum for Peter J. Wallison, Counsel to the President, from
Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel at 2 (Sept. 8,
1986) (a policy requiring the presence of government counsel at congressional interviews
“protect[s] the confidentiality of privileged information” and “ensur[es] that any re-
strictions on the scope of the interview are observed by all parties”); Letter for Henry
Waxman, Chairman, and Tom Davis, Ranking Minority Member, Committee on Over-
sight and Government Reform, U.S. House of Representatives, from Dinah Bear, General
Counsel, Council on Environmental Quality, Executive Office of the President at 2 (Mar.
12, 2007) (in an oversight deposition of a former employee the agency has “a strong
interest in ensuring that the information provided on its behalf is accurate, complete, and
correct,” a “fundamental and well-recognized interest in ensuring that its personnel are
not pressed into revealing privileged information belonging to the Executive Branch,” and
“a strong interest in providing reassurance and support to staff who are called to Congress
to provide information about their work-related activities”).
5 The attorney’s fiduciary duties and obligations run to the entity on whose behalf the
employee is appearing, not to the employee herself. See Restatement (Third) of the Law
Governing Lawyers § 97 cmt. c (Am. Law Inst. 2000) (“A lawyer who represents a
governmental official in the person’s public capacity must conduct the representation to
advance public interests as determined by appropriate governmental officers and not, if
different, the personal interests of the occupant of the office.”).
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Authority to Pay for Private Counsel to Represent Employee Before Congress
official capacities are tantamount to suits or subpoenas against the gov-
ernment itself.”). When counsel represents the employee in her individual
capacity, by contrast, the attorney owes a fiduciary duty and a duty of
confidentiality to the employee, not the agency. This opinion addresses
the circumstances under which an agency may use appropriated funds to
pay counsel to represent the employee in her individual capacity. 6
II.
Appropriations law, prior opinions of this Office, and historical prac-
tice establish the legal framework governing an agency’s ability to retain
and pay for private counsel to represent its employees in a congressional
oversight inquiry. A review of these sources makes clear that an agency
may retain and pay for private counsel to represent an employee in a
deposition or interview before a congressional committee where three
conditions are met. First, representation of the agency by agency counsel
at the deposition must be inappropriate or impermissible. Second, repre-
sentation by private counsel must be in the government’s interest, and the
government may not pay fees incurred in representing the purely personal
interests of the employee. Third, the agency must have the organic statu-
tory authority and an available appropriation to retain and pay for private
counsel.
The “basic rule” governing the use of appropriated funds to pay for pri-
vate counsel is that “a general appropriation may be used to pay any
expense that is necessary or incident to the achievement of the underlying
objectives for which the appropriation was made.” Indemnification of
Department of Justice Employees, 10 Op. O.L.C. 6, 8 (1986) (quoting
General Accounting Office, Principles of Federal Appropriations Law
3-12 to 3-15 (1st ed. 1982)). The Constitution directs that “[n]o Money
shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law.” U.S. Const. art. I, § 9, cl. 7. Congress has adopted several
statutes reflecting this constitutional principle, among them the Purpose
6 You have not asked about, and we have not evaluated, the constitutional concerns
that may be raised by the Committees’ prohibition on attendance by counsel representing
the agency. We do note, however, that such a prohibition could potentially undermine the
Executive Branch’s ability to protect its confidentiality interests in the course of the
constitutionally mandated accommodation process, as well as the President’s constitu-
tional authority to consider and assert executive privilege where appropriate.
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Opinions of the Office of Legal Counsel in Volume 41
Act, 31 U.S.C. § 1301(a), which the Comptroller General has described as
“one of the cornerstones” of federal appropriations law. 1 Government
Accountability Office, Principles of Federal Appropriations Law 4-6 (3d
ed. 2004) (“Federal Appropriations Law”). The Purpose Act provides that
“[a]ppropriations shall be applied only to the objects for which the appro-
priations were made except as otherwise provided by law.” 31 U.S.C.
§ 1301(a); see also United States v. MacCollom, 426 U.S. 317, 321 (1976)
(noting the “established rule” that “the expenditure of public funds is
proper only when authorized by Congress”). As this Office has previously
recognized, however, the Purpose Act “leaves federal agencies with
‘considerable discretion in determining whether expenditures further the
agency’s authorized purposes and therefore constitute proper use of gen-
eral or lump-sum appropriations.’” State and Local Deputation of Federal
Law Enforcement Officers During Stafford Act Deployments, 35 Op.
O.L.C. __, at *8 (Mar. 5, 2012) (“Stafford Act Deployments”) (quoting
Use of General Agency Appropriations to Purchase Employee Business
Cards, 21 Op. O.L.C. 150, 153 (1997)). “If the agency believes that the
expenditure bears a logical relationship to the objectives of the general
appropriation, and will make a direct contribution to the agency’s mis-
sion, the appropriation may be used.” Indemnification of Department of
Justice Employees, 10 Op. O.L.C. at 8; see also Indemnification of Treas-
ury Department Officers and Employees, 15 Op. O.L.C. 57, 60 (1991)
(noting that an expenditure is permissible if it “directly” or “incidentally
accomplishes a specific congressional purpose” or “is generally necessary
for the realization of broader agency objectives covered by the appropria-
tion” (internal quotation marks omitted)). 7
7 This understanding of an agency’s discretion under the Purpose Act and Constitution
mirrors the conclusions of the Comptroller General. The Comptroller General has found
an expenditure permissible as a necessary expense when the expenditure, among other
things, “‘bear[s] a logical relationship to the appropriation sought to be charged,’” by
“‘mak[ing] a direct contribution to carrying out either a specific appropriation or an
authorized agency function for which more general appropriations are available.’” Staf-
ford Act Deployments, 35 Op. O.L.C. at *8 (quoting 1 Federal Appropriations Law at
4-21); see also Department of Homeland Security—Use of Management Directorate
Appropriations to Pay Costs of Component Agencies, B-307382, 2006 WL 2567514, at 4
(Comp. Gen. Sept. 5, 2006) (“Even if a particular expenditure is not specifically provided
for in the appropriation, the expenditure may be permissible under the ‘necessary expense
doctrine’ if it will contribute materially to the effective accomplishment of the [agency]
function.”). Although the legal interpretations and opinions of the Comptroller General
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Authority to Pay for Private Counsel to Represent Employee Before Congress
In the context of retention of private counsel, this Office has concluded
that the “logical relationship” standard may be met when the representa-
tion is in the government’s interest, the employee is being questioned
about conduct performed within the scope of her employment, and agency
counsel is not available. In 1980, for instance, we concluded that the
White House could use appropriated funds to retain private counsel to
accompany White House employees to represent the government’s inter-
ests when those employees testified about their official duties before a
Senate committee. Representation of White House Employees, 4B Op.
O.L.C. at 753–55. We explained that “there are . . . legitimate governmen-
tal interests which arise whenever executive branch employees are called
to testify before the Congress,” id. at 754, including interests in defending
official policies and protecting the government’s confidentiality interests,
id. at 753. We recognized that those interests are normally protected by
agency counsel, but because the White House had acquiesced in the
Committee’s demand that White House lawyers not serve as counsel, we
concluded that the White House could retain private counsel to represent
the government’s interests. 8 Id. at 754.
Similarly, this Office, with the concurrence of the Civil Division, con-
cluded in 1990 that the Department of Justice (“DOJ” or the “Depart-
ment”) could reimburse its employees for expenses they incurred retain-
are not binding on Executive Branch agencies, they “often provide helpful guidance on
appropriations matters and related issues.” Stafford Act Deployments, 35 Op. O.L.C. at *9
n.8 (internal quotation marks omitted).
8 That inquiry is consistent with the analysis employed in opinions issued by the
Comptroller General. In a 1979 opinion, the Comptroller General approved the CIA’s
retention of a private attorney to represent an employee who was called to testify before
Congress and required to defend himself before professional organizations regarding work
he performed within the scope of his employment. See Reimbursement by Central Intelli-
gence Agency of Employee’s Legal Fees, B-193712, 1979 WL 12508 (Comp. Gen. May
24, 1979). In that opinion, the Comptroller General concluded that a general appropriation
allowing the CIA to expend funds “for purposes necessary to carry out its functions”
permitted the agency to reimburse the employee for his legal fees, because the conduct
about which the employee was questioned “was in furtherance of an agency function” and
“necessary to carry out the Agency’s functions.” Id. at 2. In a later opinion, the Comptrol-
ler General concluded that, where agency counsel was not available, private counsel could
be permissibly retained when “representation of the employee is in the Government’s
interest,” and the employee “performed the conduct in issue within the scope of his
employment.” International Trade Commission—Legal Representation, 61 Comp. Gen.
515, 516 (1982).
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Opinions of the Office of Legal Counsel in Volume 41
ing private counsel to represent them in their official capacities in deposi-
tions before a congressional committee. Reimbursing Justice Department
Employees, 14 Op. O.L.C. at 137–38. We explained that the committee’s
rules prohibited agency counsel from attending the depositions, id. at
133–34, and that there were “sufficient governmental interests . . . at stake
in all of the depositions to justify representation by Department counsel—
and when the Committee objected to the presence of Department counsel,
representation by private counsel paid for by the Department.” Id. at 137.
We also noted that the employees’ testimony pertained to their official
duties. Id. at 133–34. In light of those considerations, we concluded that
DOJ could use appropriated funds to reimburse the employees for legal
fees incurred in connection with private counsel retained to represent
them in their official capacities. Id. at 135 (“A number of opinions of this
Office specifically hold that where Department representation would
ordinarily be provided in a congressional investigation but is inappropri-
ate under the specific circumstances, the Department may reimburse a
government employee for legal fees incurred using private counsel.”).
We have also concluded that in certain circumstances, it may be in the
government’s interest to pay for private counsel to represent an employee
in her individual capacity in her testimony before congressional commit-
tees. In two memoranda written in 1983 and 1984, we stated that the EPA
could use appropriated funds to reimburse former EPA Administrator
Anne Burford for fees incurred by private counsel she had retained
to represent her in her individual capacity in a congressional oversight
inquiry. Burford I at 1; Memorandum for James A. Barnes, General
Counsel, Environmental Protection Agency, from Theodore B. Olson,
Assistant Attorney General, Office of Legal Counsel, Re: Payment of
Private Counsel Fees Incurred by Anne M. Burford at 1 (Mar. 12, 1984)
(“Burford II ”). In reaching that conclusion, we looked to the Depart-
ment’s regulations governing the provision of individual-capacity re-
presentation to federal employees as a guide. 9 Burford I at 3–4 & n.3.
We noted that those regulations, consistent with the analysis described
above, provide that representation is appropriate where “1) the employee
was acting in the scope of his employment and 2) representation is in the
interest of the United States.” Id. at 4; see 28 C.F.R. §§ 50.15, 50.16.
9 We noted, however, that the DOJ regulations did “not necessarily bind the EPA.”
Burford I at 3–4 n.3.
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Authority to Pay for Private Counsel to Represent Employee Before Congress
With respect to the government-interest inquiry, we stated that “it is
normally presumed to be in the interest of the United States to provide
representation for employees sued (or subpoenaed) for acts performed
within the scope of their employment.” Burford I at 4 n.4. We therefore
concluded that the regulations’ threshold requirements for representation
were met. Id. As a result, the regulations contemplated that DOJ ordinari-
ly would provide representation by agency attorneys, “unless one of
several conflicts of interest” was present, in which case DOJ could retain
private counsel to represent the employee. Id. at 4–5. In Ms. Burford’s
case, we observed, DOJ attorneys were unable to represent her before the
congressional committees because of an “apparent conflict” arising from
the Department’s investigation into the conduct that was the subject of the
hearing. Id. at 3. Because representation by government counsel was
inappropriate, and providing private representation for Ms. Burford in
connection with her testimony about her official duties was in the gov-
ernment’s interest, we concluded that the EPA could reimburse her for
fees incurred by private counsel. Id. at 7. In our second memorandum
concerning the Burford matter, we reaffirmed that “the retention of pri-
vate counsel to represent [Ms. Burford] before congressional committees
would have been and continues to be within the lawful authority of the
EPA and the Department of Justice.” Burford II at 5.
In determining whether and to what extent providing representation is
in the government’s interests, our Office has repeatedly emphasized the
need to distinguish between government interests and personal interests.
See Representation of White House Employees, 4B Op. O.L.C. at 754–55
(“Although it can become difficult to distinguish between personal and
governmental interests, this point is one of considerable importance.”).
This need arises, in part, because general appropriations are available to
pay for private counsel only when doing so is necessary to the furtherance
of government interests; they are not available to pay for representation of
purely private interests. See id. at 753; see also Smithsonian Institution
Use of Appropriated Funds for Legal Representation of Officers and
Employees, 70 Comp. Gen. 647, 649 (1991) (“It is well-established that
federal funds may not be used to reimburse a government employee for
legal fees incurred in connection with matters of personal, rather than
official, interest.”).
The existence of personal interests, however, “does not automatically
preempt a legitimate government interest”; “[t]he two may exist side-by-
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side.” 1 Federal Appropriations Law at 4-58. In the case of representation
before a congressional committee, we have recognized that “the official
and personal interests of employees may overlap to a large extent.” Rep-
resentation of White House Employees, 4B Op. O.L.C. at 753. The “inter-
ests in presenting information correctly and clearly” in congressional
proceedings “are both personal and governmental.” Id. By contrast, the
employee’s interests “in avoiding federal criminal prosecution, civil
liability to the United States or adverse action by a federal agency” are
“purely personal,” and the Executive Branch’s interests in “asserting a
governmental privilege [and] defending official policies and procedures”
are “entirely governmental.” Id. Although congressional testimony thus
may implicate both government and personal interests, we have opined
that “any personal interests are merely incidental to the governmental
interests” when it has appeared that there was no “personal or official
wrong-doing of which the [testifying] employees could fairly be accused.”
Reimbursing Justice Department Employees, 14 Op. O.L.C. at 137. We
explained:
Like all witnesses before Congress, the employees have “personal”
interests such as being treated fairly, having a full and fair oppor-
tunity to respond, and avoiding being made an unfair target of con-
gressional criticism; beyond that, these witnesses are appearing
before Congress only because they did their jobs as Department
employees. These personal interests would not appear to be of the
kind this Office has previously identified as “purely personal.”
Id. We therefore concluded that despite the presence of incidental per-
sonal interests, sufficient government interests were at stake to justify
paying for representation for the employee. Id. The Department’s regu-
lations governing the retention of private counsel rely on this distinction
as well, prohibiting reimbursement of expenses incurred for “legal work
that advances only the individual interests of the employee.” 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 related civil suit
or faces other potential adverse legal consequences related to the actions about which they
face questioning. As a result, representation of a federal employee in her individual
capacity by DOJ attorneys is available only when the individual faces a personal risk of
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Authority to Pay for Private Counsel to Represent Employee Before Congress
III.
Under the principles established in these precedents, we conclude, as
we previously advised you, that HHS may retain and pay for private
counsel to represent its employee at the deposition before the Committees.
Under the circumstances as you have described them to us, the three
conditions set forth above have been satisfied. The Committees have
prohibited HHS from providing agency counsel or any other attorneys
representing the agency (i.e., substitute agency counsel) to accompany the
employee. HHS has determined that providing individual representation
of the HHS employee in these circumstances furthers important govern-
ment interests and that doing so will not involve paying for counsel to
represent the purely personal interests of the employee. And HHS has
both organic statutory authority and an available appropriation to retain
and pay for private counsel to represent the individual employee.
A.
First, under the procedures that govern a deposition conducted by the
Committees, neither HHS nor any substitute agency counsel is permitted
to represent the agency at the deposition. As we have explained, HHS
counsel would ordinarily represent HHS at a congressional proceeding in
which an employee was providing testimony about the agency’s imple-
mentation of the CSR program and her own involvement in that imple-
mentation in the course of her official duties. But here, HHS attorneys are
not permitted to perform this function because “counsel . . . for agencies
under investigation may not attend” the deposition. See Deposition Pro-
cedures.
Our writings suggest that when a congressional committee has prohib-
ited counsel from a particular agency from attending an interview of an
agency employee, either an attorney from another government agency or
private counsel may substitute for agency counsel, accompanying the
employee to the interview to represent the government’s interests. See
Representation of White House Employees, 4B Op. O.L.C. at 754; Reim-
bursing Justice Department Employees, 14 Op. O.L.C. at 134. That ar-
civil liability or other adverse legal consequences as a result of actions taken within the
scope of her employment, and the Attorney General or her delegee determines that such
representation is in the government’s interest. See 28 C.F.R. §§ 50.15, 50.16.
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Opinions of the Office of Legal Counsel in Volume 41
rangement, however, also appears to be prohibited by the Committees’
deposition procedures. Outside counsel substituting for HHS attorneys at
the deposition would be representing the agency, not the individual. See
Representation of White House Employees, 4B Op. O.L.C. at 755 (substi-
tute agency counsel “must clearly understand that he is the Government’s
lawyer and not private counsel for the represented employee”). The attor-
ney would be acting as substitute “counsel . . . for [the] agenc[y] under
investigation,” and thus would be barred by the Committees’ proce-
dures. 11 See Deposition Procedures. The Committees’ procedures thus
preclude HHS from accompanying its employee to the deposition to
represent the agency’s interests and preclude HHS from arranging for any
outside counsel, whether from within the Executive Branch or from pri-
vate practice, to accompany its employee to represent the agency’s inter-
ests.
11 Counsel representing the individual employee in her “official capacity” would be
barred by the Committees’ procedures for the same reason. As discussed, counsel who
represents an employee in her official capacity would also be acting as “counsel . . . for
[the] agenc[y],” see supra note 5, and would be prohibited from attending the deposition
under the Committees’ procedures as we understand them. Cf. Kentucky v. Graham, 473
U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.”); Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682, 703–04 (1949) (holding that a suit against a government employee was
barred by sovereign immunity because the action at issue was “within [the officer’s]
authority” as a government official and “inescapably the action of the United States”).
As suggested earlier, in the context of “representation in connection with Congression-
al subpoenas,” we have opined that the “distinction between official capacity and individ-
ual capacity is difficult to make” because an employee’s appearance before a congres-
sional committee may “contain[] elements of both individual and governmental repre-
sentation.” Burford I at 3–4 n.3. Here, the Committees’ deposition procedures do not
allow for official-capacity representation, so any attorney retained by HHS must provide
individual-capacity representation, pursuant to which the attorney owes duties of loyalty
and confidentiality to the employee, not the agency. To be sure, the employee arguably
could be said to be testifying in her official capacity. The Civil Division has informed us
that it considers employees who are called to testify about their official duties, but who
otherwise do not face individual liability in damages or some other personal legal jeop-
ardy, to testify in their official capacities. By allowing only individual-capacity represen-
tation, however, the Committees’ deposition procedures make it unnecessary to resolve
whether the HHS employee has been subpoenaed to testify in her individual or official
capacity. As noted above, therefore, this opinion addresses only whether HHS may
provide individual-capacity representation to its employee, the same situation we ad-
dressed in the two Burford memoranda. See Burford I at 3–4 & n.3; Burford II at 3–4.
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Authority to Pay for Private Counsel to Represent Employee Before Congress
B.
Second, it is reasonable for HHS to conclude that the provision of
individual-capacity representation to the HHS employee is in the govern-
ment’s interest because she has been subpoenaed by the Committees to
testify regarding actions taken in the course of her official duties, and she
lacks the sort of purely personal interests that would preclude representa-
tion at government expense. The important government interests furthered
by the representation include ensuring that the employee provides accu-
rate and complete information, protecting her from inadvertently disclos-
ing confidential information that she is not authorized to disclose, protect-
ing her from questioning outside the scope of the deposition, supporting
her in the face of potentially hostile questions from the Committees and
their staffs, and preventing her from incurring substantial legal fees as a
result of acts taken in the performance of her duties on behalf of the
agency. As we have explained, it is “normally presumed to be in the
interest of the United States to provide representation for employees sued
(or subpoenaed) for acts performed within the scope of their employ-
ment.” Burford I at 4 n.4. These employees “are appearing before Con-
gress only because they did their jobs,” Reimbursing Justice Department
Employees, 14 Op. O.L.C. at 137, and the government has an interest in
providing them representation—even when the representation pertains to
the employee’s individual capacity, see Burford I at 4–5 & nn.3–4.
In particular, providing individual-capacity representation furthers
HHS’s interest in protecting its employees from the burden of undergoing
potentially hostile questioning and incurring legal fees as a result of
actions taken in good faith on behalf of the agency. Our Office, the
Comptroller General, and the Supreme Court have recognized on numer-
ous occasions that forcing federal employees to defend themselves against
the burdens of civil litigation and incur legal fees in doing so may chill
the employees’ exercise of their official duties. See, e.g., Indemnification
of Treasury Department Officers and Employees, 15 Op. O.L.C. at 61–63
(collecting authorities). As a result, providing counsel to employees
facing such burdens serves important government interests in ensuring
that Executive Branch employees acting in good faith may discharge their
official duties and discretionary functions rigorously, without concern
about potential reprisals or legal fees. See Department of Justice Authority
to Represent the Secretary of Housing and Urban Development in Certain
Potential Suits, 31 Op. O.L.C. 212, 216 (2007) (“[T]he United States has
13
Opinions of the Office of Legal Counsel in Volume 41
an interest in defending an officer from suits arising from the faithful
discharge of his statutory responsibilities . . . because it would be protect-
ing an officer from the potential burden of litigation arising out of his
service.”); see also Fees of District Attorneys, 9 Op. Att’y Gen. 146, 148
(1858) (“When a[n] . . . executive officer is sued for an act done in the
lawful discharge of his duty, the government which employed him is
bound, in conscience and honor, to stand between him and the conse-
quences.”).
Although an employee subpoenaed to appear before a congressional
committee for a deposition is not subject to civil liability, the proceeding
nonetheless may be burdensome, and providing representation may fur-
ther the government’s interest in protecting the employee from that bur-
den. Without counsel paid for by the agency, the employee would have to
incur legal fees to have any representation. See Memorandum for Dick
Thornburgh, Attorney General, and Stuart E. Schiffer, Acting Assistant
Attorney General, Civil Division, from William P. Barr, Assistant Attor-
ney General, Office of Legal Counsel, Re: Reimbursement of Attorney
Fees for Private Counsel Representing Former Government Officials in
Federal Criminal Proceedings at 18 (Oct. 19, 1989) (“[The employee]
was caught in a power struggle between Congress and the executive
branch. Such policy disputes are frequent, and should not invoke the
specter of personal liability for attorneys[’] fees for Administration offi-
cials simply, and properly, doing their jobs. The potential for abuse in
such circumstances is profound.”). Proceeding without representation
would leave the employee to defend herself against potentially hostile
questioning without any legal advocate—in a setting in which there is no
neutral magistrate to moderate the parties’ conduct or adjudicate objec-
tions. The government has an interest in providing representation to such
an employee. That is particularly true when the agency instructs the
employee not to answer certain questions in order to protect the Executive
Branch’s privileges and confidentiality interests, as it is the employee who
ultimately faces the potential for sanctions as a result. 12
12 If the proceedings, including the potential for sanctions, evolve in a manner that
gives rise to a conflict between the interests of the government and the employee, such
that further representation is not in the government’s interests, the agency may no longer
pay for private counsel. See Representation of White House Employees, 4B Op. O.L.C. at
754; cf. 28 C.F.R. § 50.16(c)(2) (“Federal payment to private counsel for an employee
14
Authority to Pay for Private Counsel to Represent Employee Before Congress
Private counsel representing the individual may also indirectly further
the government’s confidentiality interests. Cf. Department of Justice
Funding of Representation of Victims in Connection with a West German
Prosecution, 12 Op. O.L.C. 105, 107 (1988) (“[T]he existence vel non of
a governmental interest in this case should not depend on the fact that the
counsel we retain will technically be representing a private party, as
opposed to the United States government itself.”). To be sure, counsel
representing the individual cannot fully protect those interests, as she may
not assert government privileges and ultimately owes fiduciary duties to
the individual employee, not the agency. See Representation of White
House Employees, 4B Op. O.L.C. at 754–55. But that does not preclude
private counsel from consulting with agency attorneys before or during
the interview to understand where the government’s confidentiality inter-
ests lie and what information the employee is authorized to disclose.
Because the employee’s testimony relates only to official actions taken in
the scope of her employment, the information at issue in her testimony is
agency information, not information that is personal to the employee. The
Executive Branch controls the dissemination of such information. See
Authority of Agency Officials to Prohibit Employees from Providing
Information to Congress, 28 Op. O.L.C. 79, 80–82 (2004). Agencies have
a longstanding practice of working with employees and former employees
and, when necessary, their counsel, in the course of responding to con-
gressional oversight requests about agency information. As long as the
employee’s and the agency’s interests remain aligned, nothing about the
attorney-client relationship between the private counsel and the employee
prevents private counsel from working with agency counsel to understand
the agency’s positions about the oversight inquiry, the proper scope of the
deposition or interview, and the potential confidentiality interests impli-
cated by the requested testimony. Private counsel also may convey agency
positions or requests to committee staff.
For all of these reasons, we continue to follow the view expressed in
our 1983 Burford I memorandum that it is ordinarily in the interest of the
United States to provide individual-capacity representation for an em-
ployee subpoenaed to testify before congressional committees about acts
performed within the scope of her employment. Burford I at 4 n.4. That
will cease if . . . the Department of Justice . . . [d]etermines that continued representation
is not in the interest of the United States.”).
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Opinions of the Office of Legal Counsel in Volume 41
presumption applies here because, as we understand the circumstances,
the acts that are the basis for the Committees’ subpoena were performed
within the scope of the employee’s official duties.
The normal presumption may not apply where the employee is also the
subject of a criminal investigation, has potential civil liability to the
United States, or is subject to any adverse action by a federal agency on
the basis of the actions under investigation by the congressional commit-
tee. See Representation of White House Employees, 4B Op. O.L.C. at
750–53; see also supra Part II. It is our understanding from HHS that
none of these circumstances applies to the subpoenaed employee. Thus,
the individual employee does not have any “purely personal” interests in
this matter that would preclude the provision of representation at govern-
ment expense under our previous opinions. The employee does have
the kind of “personal” interests described in our 1990 Reimbursing De-
partment of Justice Employees opinion, including “avoiding being made
an unfair target of congressional criticism,” having an opportunity to
respond fully to questions, and avoiding possible sanctions under the
congressional procedures for refusing to answer the Committees’ ques-
tions. 14 Op. O.L.C. at 137. But, as we explained in that opinion, these
interests are not “purely personal”; they are “incidental” to, and in many
cases overlap with, the substantial government interests implicated by
a deposition before congressional committees relating solely to acts taken
in the course of the employee’s official duties. Id. Where, as here, the
individual employee has only incidental personal interests that largely
overlap with the government interests in supporting, informing, and
protecting agency employees when they are compelled to testify about
their official duties, we conclude that providing the employee with indi-
vidual representation is permissible, and an expense that an agency may
consider necessary to the performance of important agency functions.
C.
We also conclude that HHS has the statutory authority and an available
appropriation to retain and pay for private counsel to represent its em-
ployee in the Committees’ deposition. 13 HHS, like other federal agencies,
13 You asked for our legal advice about whether HHS may pay for private counsel to
represent its employee. Organic statutory authority and an available appropriation to use
that authority are necessary for the agency to retain private counsel, which is the issue we
16
Authority to Pay for Private Counsel to Represent Employee Before Congress
may “procure by contract the temporary . . . or intermittent services of
experts or consultants or an organization thereof ” if that procurement is
“authorized by an appropriation or other statute.” 5 U.S.C. § 3109(b); see
Burford I at 6 n.7 (noting the possibility of utilizing section 3109 to retain
private counsel); Use of White House Funds for Payment of Consultants
to Assist Presidential Nominee to Regulatory Agency at Confirmation
Hearing, 2 Op. O.L.C. 376, 377 (1977) (“Use of White House Funds”)
(section 3109 “would thus appear to encompass the employment of out-
side counsel to assist the nominee if, in your judgment, this would provide
expert or professional services not available within the White House
Office”). 14 Although we have advised in a similar context that section
3109 alone “do[es] not . . . provide the substantive authority” to hire
private counsel, we recognized that it does “provide a method of proce-
dure for carrying into effect powers elsewhere granted.” Providing Repre-
sentation for Federal Employees Under Investigation by the Inspector
General, 4B Op. O.L.C. 693, 695 (1980); see also 1 Federal Appropria-
tions Law at 4-14 (section 3109 itself “does not authorize an agency to
spend general operating appropriations to hire consultants,” but requires a
specific authorizing appropriation or statute). Section 3109 thus allows
an agency to procure the services of an expert or consultant where a
condition precedent is met: when that procurement is “authorized by an
appropriation or other statute.” See HHS Letter at 3 (noting that section
3109 is “best regarded as a type of appointment mechanism for certain
analyze in this section. However, if the agency lacks such organic authority, but deter-
mines that private representation would be in the government’s interest, the agency may
be able to reimburse its employee for private counsel expenses as “necessary expenses”
incurred in furtherance of agency functions. See Burford II at 5. As we explained in the
Burford matter, however, it would be preferable for the agency to contract directly with
the private attorney because doing so “enables the agency to retain control over the terms
of the contract, instead of leaving the negotiation of contract terms to individual employ-
ees.” Id. at 6.
14 The use of section 3109 is permissible only where agency employees are not able to
perform the function for which the expert is retained. See 5 C.F.R. § 304.103(b)(3)–(5)
(prohibiting the use of section 3109 to appoint an expert or consultant to “function in the
agency chain of command,” to “do work performed by the agency’s regular employees,”
or to “fill in during staff shortages”); Employment of Temporary or Intermittent Attorneys
and Investigators, 3 Op. O.L.C. 78, 78–79 (1979) (“[I]n our view, this appropriation may
not be used to hire employees to perform the same functions as are performed by regular
employees in your Office.”).
17
Opinions of the Office of Legal Counsel in Volume 41
Government employees when Congress has provided express authoriza-
tion for its use”).
HHS has a specific statutory authorization that enables it to use an ap-
propriation for the purpose of hiring consultants under section 3109. In
the Fiscal Year 1993 HHS appropriations act, Congress included a perma-
nent authorization providing that HHS appropriations that are “available
for salaries and expenses . . . shall be available for services as authorized
by 5 U.S.C. 3109.” Departments of Labor, Health and Human Services,
and Education and Related Agencies Appropriations Act, 1993, Pub. L.
No. 102-394, 106 Stat. 1792, 1825 (Oct. 6, 1992) (“FY 1993 Authoriza-
tion”); HHS Letter at 3. We understand this provision to provide the
necessary substantive authority for HHS to use available appropriations to
contract for services “as authorized by” section 3109, that is, pursuant to
the conditions and prohibitions set forth in section 3109 and its imple-
menting regulations. See 5 U.S.C. § 3109(b), (c), (d) (limiting the contract
to one year, prohibiting the filling of certain positions under the authority
granted, and directing the Office of Personnel Management to promulgate
regulations “necessary for the administration” of the section); 5 C.F.R.
pt. 304 (setting forth regulations governing agencies’ use of section 3109,
including compensation and reporting requirements). Numerous opinions
of this Office, the Comptroller General, and other bodies support that
conclusion. See, e.g., Use of White House Funds, 2 Op. O.L.C. at 376
(noting that a current White House appropriation for “services as author-
ized by section 3109” “authorize[d] the hiring of consultants”); Charles R.
Hobbes Corp., B-191865, 1978 WL 11030, at 2 (Comp. Gen. Nov. 13,
1978) (concluding that a Department of Interior appropriation, which
made funds available to contract “for services as authorized by 5 U.S.C.
3109,” see Pub. L. No. 95-74, § 104, 91 Stat. 295, 297 (July 26, 1977),
“specifically permitted” the agency “to procure such services by contract
or appointment”); Lovoy v. Dep’t of Health & Human Servs., 94 M.S.P.R.
571, 576–77 (2003) (stating that HHS’s FY 1993 Authorization permits
HHS to use appropriations to pay experts and consultants appointed under
section 3109 at a particular pay rate). 15 Accordingly, the FY 1993 Au-
15 In the course of our analysis, we considered whether the phrase “as authorized by
section 3109,” as used in the FY 1993 Authorization, should be interpreted to authorize
the expenditure of appropriations only in circumstances in which section 3109 itself
authorizes using appropriated funds to contract for services. We rejected that interpreta-
tion, however, because it would render the FY 1993 Authorization a nullity. As noted
18
Authority to Pay for Private Counsel to Represent Employee Before Congress
thorization permits HHS to use funds available to pay for salaries and
expenses to contract for the services of a private counsel pursuant to
section 3109.
HHS also has a current appropriation available for salaries and expens-
es that it can use to pay for private counsel. In the 2016 Consolidated
Appropriations Act, HHS received an appropriation “[f ]or necessary ex-
penses, not otherwise provided, for general department management.”
Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat.
2242, 2617 (Dec. 18, 2015). HHS has informed us that this appropriation
is available to pay for salaries and expenses; it is thus also available under
the FY 1993 Authorization to contract for services as authorized by sec-
tion 3109. Because, as discussed above, the provision of private represen-
tation is in the government’s interest, the testimony of the employee
relates solely to actions taken within the scope of her official duties, and
agency counsel cannot be present, see supra Parts III.A–B, HHS may
permissibly conclude that contracting for the services of a private attorney
to represent its employee is a “necessary expense” that “bears a logical
relationship to the objectives of [its] general appropriation.” Indemnifi-
cation of Department of Justice Employees, 10 Op. O.L.C. at 8. Funds
from the 2016 appropriation therefore are available under the FY 1993
Authorization to contract for the temporary service of an outside counsel
pursuant to section 3109. 16
above, section 3109 does not itself authorize any action, but instead is contingent on
authority provided in appropriations provisions or other statutes. Consistent with the
canon against construing statutory provisions to be “superfluous, void, or insignificant,”
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted), the
construction of the phrase “as authorized by section 3109” that we adopt here gives the
FY 1993 Authorization operative effect. That construction is also consistent with both the
Executive Branch’s and the Comptroller General’s historical interpretations of the identi-
cal phrase in other appropriations provisions.
16 HHS, and other agencies that face circumstances similar to those that are the basis
for this opinion, may benefit from consulting with the Civil Division about its administra-
tion of the Department of Justice’s private counsel retention program. Civil Division
Directive 2120B implements the Department’s individual-capacity representation regula-
tions, 28 C.F.R. §§ 50.15, 50.16, and currently includes, among other provisions, a fee
limitation of $300 per hour, plus expenses, for private representation. See Civil Division,
Dep’t of Justice, Administrative Directive 2120B, Retention and Payment of Private
Counsel at 13 (Oct. 1, 2016). The Civil Division encourages interagency coordination so
that the Executive Branch continues to be able to retain private counsel where necessary
at appropriate rates and in accordance with uniform standards of representation.
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Opinions of the Office of Legal Counsel in Volume 41
IV.
For the reasons set forth above, we concluded in our prior oral advice
that, in these circumstances and under the Committees’ procedures gov-
erning depositions, HHS may retain and pay for private counsel to repre-
sent its employee in the deposition.
GINGER D. ANDERS
Deputy Assistant Attorney General
Office of Legal Counsel
20