Principles of Federal Appropriations Law - US Government ...

Chapter 4
Availability of Appropriations: Purpose
Senator—were not. Before the Justice Department reached its decision, the
employee retained private counsel and was successful in having the suit
dismissed. Subsequently, the Justice Department determined that the
employee would not have been eligible for representation since Agriculture
had been unwilling to say that all of the employee’s actions were within the
scope of his official duties. On this basis, GAO found no entitlement to
government representation and disallowed the employee’s claim for
reimbursement of his legal fees.
Similarly, GAO denied a claim for legal fees where an Army Reserve
member on inactive duty was arrested by the Federal Bureau of
Investigation (FBI), charged with larceny of government property, and the
charge was later dismissed. The government property involved consisted of
service weapons and ammunition. The member had been authorized to
retain weapons and ammunition in his personal possession, although it is
not clear from the decision how this authority justified the possession of
seven guns and over 100,000 rounds of ammunition, which is what the FBI
found. In any event, the member’s actions did not result from the
performance of required official duties but were at best permissible under
existing regulations. Therefore, there was no entitlement to either
government-furnished or government-financed representation. B-185612,
Aug. 12, 1976.
A related situation is where an employee incurs legal fees defending against
a fine. In section C.6 of this chapter on Fines and Penalties, a distinction is
drawn between an action that is a necessary part of an employee’s official
duties and an action which, although taken in the course of performing
official duties, is not a necessary part of them. By logical application of this
reasoning, where the fine itself is not reimbursable, related legal fees are
similarly nonreimbursable. Thus, in 57 Comp. Gen. 270 (1978), the
Comptroller General held that the employing agency could not pay legal
fees incurred by one of its employees defending against a reckless driving
charge, where the Justice Department had declined to provide
representation or to authorize retention of private counsel. See also
B-192880, Feb. 27, 1979 (nondecision letter); 15 Op. Off. Legal Counsel 57,
63 (1991).
In 70 Comp. Gen. 647, supra, the Smithsonian Institution used federal
funds to provide legal services to an Interior Department employee (on
detail at the Smithsonian) who became the subject of federal civil and
criminal investigations. After a big-game hunt in China, some hunters and
the Interior Department employee (whom the hunters had paid to serve as
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