PART 15—LEGAL PROCEEDINGS Authority: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515 and 1518; Reorganization Plan No. 5 of 1950; 3 CFR, 1949-1953 Comp., p. 1004; 44 U.S.C. 3101; subpart C is issued under 37 U.S.C. 101, 706; 15 U.S.C. 1673; 42 U.S.C. 665. Editorial Note: Nomenclature changes to part 15 appear at 62 FR 19669, Apr. 23, 1997. Subpart A—Service of Process Source: 53 FR 41318, Oct. 21, 1988, unless otherwise noted. Redesignated at 62 FR 19669, Apr. 23, 1997. § 15.1 Scope and purpose. (a) This subpart sets forth the procedures to be followed when a summons or complaint is served on the Department, a component, or the Secretary or a Department employee in his or her official capacity. (b) This subpart is intended to ensure the orderly execution of the affairs of the Department and not to impede any legal proceeding. (c) This subpart does not apply to subpoenas. The procedures to be followed with respect to subpoenas are set out in subpart B. (d) This subpart does not apply to service of process made on a Department employee personally on matters not related to official business of the Department or to the official responsibilities of the Department employee. [53 FR 41318, Oct. 21, 1988. Redesignated and amended at 62 FR 19669, 19670, Apr. 23, 1997] § 15.2 Definitions. For the purpose of this subpart: (a) General Counsel (b) Component (c) Department (d) Department employee (e) Legal proceeding (f) Official business (g) Secretary § 15.3 Acceptance of service of process. (a) Except as otherwise provided in this subpart, any summons or complaint to be served in person or by registered or certified mail or as otherwise authorized by law on the Department, a component or the Secretary or a Department employee in their official capacity, shall be served on the General Counsel of the United States Department of Commerce, Washington, DC 20230. (b) Any summons or complaint to be served in person or by registered or certified mail or as otherwise authorized by law on the Patent and Trademark Office or the Commissioner of Patents and Trademarks or an employee of the Patent and Trademark Office in his or her official capacity, shall be served on the Solicitor for the Patent and Trademark Office or a Department employee designated by the Solicitor. (c) Except as otherwise provided in this subpart, any component or Department employee served with a summons or complaint shall immediately notify and deliver the summons or complaint to the office of the General Counsel. Any employee of the Patent and Trademark Office served with a summons or complaint shall immediately notify and deliver the summons or complaint to the office of the Solicitor. (d) Any Department employee receiving a summons or complaint shall note on the summons or complaint the date, hour, and place of service and whether service was by personal delivery or by mail. (e) When a legal proceeding is brought to hold a Department employee personally liable in connection with an action taken in the conduct of official business, rather than liable in an official capacity, the Department employee by law is to be served personally with process. Service of process in this case is inadequate when made upon the General Counsel or the Solicitor or their designees. Except as otherwise provided in this subpart, a Department employee sued personally for an action taken in the conduct of official business shall immediately notify and deliver a copy of the summons or complaint to the office of the General Counsel. Any employee of the Patent and Trademark Office sued personally for an action taken in the conduct of official business shall immediately notify and deliver a copy of the summons or complaint to the Office of the Solicitor. (f) A Department employee sued personally in connection with official business may be represented by the Department of Justice at its discretion. See 28 CFR 50.15 and 50.16 (1987). (g) The General Counsel or Solicitor or Department employee designated by either, when accepting service of process for a Department employee in an official capacity, shall endorse on the Marshal's or server's return of service form or receipt for registered or certified mail the following statement: “Service accepted in official capacity only.” The statement may be placed on the form or receipt with a rubber stamp. (h) Upon acceptance of service or receiving notification of service, as provided in this section, the General Counsel and Solicitor shall take appropriate steps to protect the rights of the Department, component, the Secretary or Department employee involved. Subpart B—Testimony by Employees and the Production of Documents in Legal Proceedings Source: 60 FR 9291, Feb. 17, 1995, unless otherwise noted. Redesignated at 62 FR 19669, Apr. 23, 1997. § 15.11 Scope. (a) This subpart sets forth the policies and procedures to be followed with respect to the production or disclosure of the testimony of employees and former employees of the Department of Commerce as witnesses in legal proceedings and the production or disclosure of information contained in Department of Commerce documents, or any information acquired by any person while such person was an employee of the Department of Commerce, for use in legal proceedings pursuant to a request, order, or subpoena (collectively referred to in this subpart as a “demand”). No Department employee or former employee shall comply with such a demand without the prior authorization of the General Counsel or appropriate agency counsel, in accordance with this subpart. (b) This subpart does not apply to any legal proceeding in which an employee is to testify while on leave status, regarding facts or events unrelated to the official business of the Department or the duties of the employee. (c) This subpart does not apply to any legal proceeding in which the Department is a party or to subpoenas for testimony or documents received from Congress, a Federal agency Inspector General, or a Special Prosecutor. (d) This subpart does not apply to any demand for testimony of employees and former employees of the United States Patent and Trademark Office (USPTO) or to demands for the production of USPTO documents. The process for any demand for testimony of an employee or for the production of documents of the USPTO can be found at 37 CFR 104.21 through 104.24, and any such demands must be sent directly to the USPTO. (e) This subpart in no way affects the rights and procedures governing public access to records pursuant to the Freedom of Information Act, the Privacy Act, or the Trade Secrets Act or other Federal law restricting the disclosure of information. Moreover, demands in legal proceedings for the production of records, or for the testimony of Department employees regarding information protected by the Privacy Act, 5 U.S.C. 552a, the Trade Secrets Act, 18 U.S.C. 1905, Census data under Title 13, U.S.C., or other confidentiality statutes, must satisfy the requirements for disclosure set forth in those statutes, if any, before the records may be provided or testimony given. The General Counsel or appropriate agency counsel should first determine if there is a legal basis to provide the testimony or records sought under applicable confidentiality statutes before applying the procedures established in this subpart. (f) This subpart is not intended to be relied upon to, and does not, create any right or benefit, substantive or procedural, enforceable at law by any party against the United States. [87 FR 162, Jan. 4, 2022] § 15.12 Definitions. For the purpose of this subpart: (a) Agency counsel (b) Component (c) Counsel to the Inspector General (d) Demand (e) Department (f) Document information (g) Employee (h) General Counsel (i) Inspector General (j) Legal proceeding (k) Official business (l) Secretary (m) Testimony (n) United States [87 FR 162, Jan. 4, 2022] § 15.13 Demand for testimony or production of documents: Department procedures. (a) General. (b) Notifications. [email protected]; (2) The process for any demand for testimony of an employee or for the production of documents of the USPTO can be found at 37 CFR 104.21 through 104.24, and any such demands should be sent directly to the USPTO, in accordance with § 15.11(d). (c) Employee procedure. (d) Subpoenas. (1) An employee who receives such a subpoena shall not respond and shall immediately forward the subpoena to the Office of the Assistant General Counsel for Employment, Litigation, and Information or the appropriate agency counsel. The General Counsel or appropriate agency counsel will determine the extent to which a Department employee will comply with the subpoena. (2) If the General Counsel or appropriate agency counsel determines that an employee should not comply with a properly-served subpoena, the General Counsel or agency counsel will attempt to have the subpoena withdrawn or modified. If this cannot be done with regard to a subpoena for documents, the Department will provide the tribunal with an objections letter or other notification that the documents will not be produced. If this cannot be done with regard to a subpoena for testimony, the General Counsel or appropriate agency counsel will attempt to obtain U.S. Department of Justice representation for the employee and move to have the subpoena modified or quashed. If, because of time constraints, this is not possible prior to the compliance date specified in the subpoena, the employee should appear at the time and place set forth in the subpoena. If legal counsel cannot appear on behalf of the employee, the employee should produce a copy of the Department's regulations in this subpart and inform the legal tribunal that the employee has been advised by counsel not to provide the requested testimony and/or produce documents. If the legal tribunal rules that the demand in the subpoena must be complied with, the employee shall respectfully decline to comply with the demand. United States ex rel. Touhy Ragen, [87 FR 162, Jan. 4, 2022] § 15.14 Demand for testimony or production of documents in matters in which the United States is not a party. (a) General. (1) The title of the legal proceeding, (2) The forum; (3) The requesting party's interest in the legal proceeding; (4) The reason for the demand and the relevance of the request to the legal proceeding; (5) A showing that the desired testimony or document is not reasonably available from any other source; and (6) If testimony is requested, the intended use of the testimony; a general summary of the desired testimony; the time that will be required to prepare for, travel to, and present testimony; and a showing that no document could be provided and used in lieu of testimony, including from opposing parties via discovery proceedings. (b) Purpose. (c) Prior authorization. (d) Secretary's authority. (e) Consultation. (f) Fact witness. (1) Respectfully decline to answer on the grounds that such testimony is prohibited; and (2) Request an opportunity to consult with the General Counsel or appropriate agency counsel. (g) Expert or opinion witness. (i) If, while testifying in any legal proceeding, an employee is asked for expert or opinion testimony regarding official information, subjects, or activities, which testimony has not been approved in advance in accordance with the regulations in this subpart, the witness shall: (A) Respectfully decline to answer on the grounds that such expert or opinion testimony is forbidden by the regulations in this subpart; (B) Request an opportunity to consult with the General Counsel or appropriate agency counsel before giving such testimony; and (C) Explain that upon such consultation, approval for such testimony may be provided. (ii) If the body conducting the proceeding then orders the witness to provide expert or opinion testimony regarding official information, subjects, or activities without the opportunity to consult with either the General Counsel or appropriate agency counsel, the witness shall respectfully refuse to provide such testimony. See United States ex rel. Touhy Ragen, (iii) If an employee is unaware of the regulations in this subpart and provides expert or opinion testimony regarding official information, subjects, or activities in a legal proceeding without the consultation discussed in paragraph (g)(1)(i) of this section, the witness must, as soon as possible after testifying, inform the General Counsel or appropriate agency counsel that such testimony was given and provide a written summary of the expert or opinion testimony provided. (2) Former employees may provide opinion or expert testimony if: (i) The testimony does not involve non-public facts, information, or documents about a particular matter that were acquired by the former employee during the performance of their employment with the United States; and (ii) The involvement of the former employee in the proceeding as a witness complies with 18 U.S.C. 207 and applicable post-employment ethics rules. See (h) Decision. (i) Waiver. [87 FR 162, Jan. 4, 2022] § 15.15 Demand for testimony or production of documents in matters in which the United States is a party. If a demand is received pertaining to a legal matter in which the United States but not the Department is a named party, or where a party other than the Department is represented by the Department of Justice, the following rules apply. (a) Demand not from the United States. (b) Demand from the United States. (c) Expert or opinion witness. (1) The testimony does not involve facts, information, or documents about a particular matter that were acquired by the former employee during the performance of their official duties as an employee of the United States; and (2) The involvement of the former employee in the proceeding as a witness complies with applicable post-employment conflict of interest laws. See [87 FR 162, Jan. 4, 2022] § 15.16 Demand for testimony or production of documents: Department policy and considerations. (a) Decision. (1) Conserving the time of Department employees for conducting official business; (2) Minimizing the possibility of involving the Department in controversial issues that are not related to the Department's mission or matters that do not further the Department's mission; (3) Preventing the possibility that the public will misconstrue variances between personal opinions of Department employees and official Department policy; (4) Avoiding spending the time and money of the United States for private purposes; (5) Preserving the integrity of the administrative or judicial process; (6) Protecting classified, confidential, or controlled unclassified information, and the deliberative process of the Department; (7) Preventing the appearance of improperly favoring one litigant over another; (8) Avoiding the denial of a party's constitutional or statutory rights; (9) Whether such disclosure is appropriate under the rules of procedure governing the case or matter in which the demand arose; (10) Whether disclosure is appropriate under the relevant substantive law concerning privilege; and (11) Any other issue that is relevant to the decision. (b) Non-disclosure factors. (1) Disclosure is restricted by statute or regulation, or would violate a rule of procedure, Executive order, policy, or an applicable Government directive; (2) Disclosure would reveal classified or controlled unclassified information, unless appropriately declassified or decontrolled by the originating agency; (3) Disclosure would reveal a confidential source or informant, unless the investigative agency and the source or informant have no objection; (4) Disclosure would reveal investigatory records compiled for law enforcement purposes and would interfere with enforcement proceedings or disclose investigative techniques and procedures, the effectiveness of which would thereby be impaired; (5) Disclosure would improperly reveal trade secrets or disclose information protected by law, a non-disclosure agreement, or court order without authorized consent; (6) Disclosure would be unduly costly, burdensome, or otherwise inappropriate under applicable court rules; (7) Disclosure would involve the Department in controversial issues that are not related to the Department's mission or issues that do not further the Department's mission; or (8) Disclosure would involve scientific or expert opinion on research that is controversial or contrary to Department policy, or would result in burdensome repetition of similar testimony in subsequent proceedings. [87 FR 162, Jan. 4, 2022] § 15.17 Subpoenas and demands served upon employees or former employees of the Office of the Inspector General. Notwithstanding the requirements set forth in §§ 15.11 through 15.16, this subpart is applicable to demands served on employees or former employees of the Office of the Inspector General (OIG), except that wherever in §§ 15.11 through 15.16 there appear the phrases General Counsel, agency counsel, or Assistant General Counsel for Employment, Litigation, and Information, there shall be substituted in lieu thereof the Inspector General or Counsel to the Inspector General. In addition, the appropriate address for notifications specified in § 15.13(b) pertaining to employees and former employees covered under this section is Office of the Inspector General, U.S. Department of Commerce, 1401 Constitution Avenue NW, Room 7896, Washington, DC 20230. [87 FR 162, Jan. 4, 2022] § 15.18 Testimony of Department employees in proceedings involving the United States. The following applies in legal proceedings in which the United States is a party: (a) A Department employee may not testify as an expert or opinion witness for any other party other than the United States. (b) Whenever, in any legal proceeding involving the United States, a request is made by an attorney representing or acting under the authority of the United States, the General Counsel, or the Solicitor, or appropriate agency counsel will make all necessary arrangements for the Department employee to give testimony on behalf of the United States. Where appropriate, the General Counsel, or the Solicitor, or appropriate agency counsel may require reimbursement to the Department of the expenses associated with a Department employee giving testimony on behalf of the United States. Subpart C—Involuntary Child and Spousal Support Allotments of NOAA Corps Officers Source: 53 FR 15548, May 2, 1988, unless otherwise noted. Redesignated at 62 FR 19669, Apr. 23, 1997. § 15.21 Purpose. This subpart provides implementing policies governing involuntary child or child and spousal support allotments for officers of the uniformed service of the National Oceanic and Atmospheric Administration (NOAA), and prescribes applicable procedures. § 15.22 Applicability and scope. This subpart applies to Commissioned Officers of the NOAA Corps on active duty. § 15.23 Definitions. (a) Active duty. (b) Authorized person. (c) Child support. (d) Designated official. (e) Notice. (f) Spousal support. (g) Support order. § 15.24 Policy. (a) It is the policy of the Department of Commerce to require Commissioned Officers of the NOAA Corps on active duty to make involuntary allotments from pay and allowances as payment of child, or child and spousal, support payments when the officer has failed to make periodic payments under a support order in a total amount equal to the support payable for two months or longer. Failure to make such payments shall be established by notice from an authorized person to the designated official. Such notice shall specify the name and address of the person to whom the allotment is payable. The amount of the allotment shall be the amount necessary to comply with the support order. If requested, the allotment may include arrearages as well as amounts for current support, except that the amount of the allotment, together with any other amounts withheld for support from the officer as a percentage of pay, shall not exceed the limits prescribed in section 303 (b) and (c) of the Consumer Credit Protection Act (15 U.S.C. 1673). An allotment under this subpart shall be adjusted or discontinued upon notice from an authorized person. (b) Notwithstanding the above, no action shall be taken to require an allotment from the pay and allowances of any officer until such officer has had a consultation with an attorney from the Office of the Assistant General Counsel for Administration, in person, to discuss the legal and other factors involved with respect to the officer's support obligation and his/her failure to make payments. Where it has not been possible, despite continuing good faith efforts to arrange such a consultation, the allotment shall start the first pay period beginning after 30 days have elapsed since the notice required in paragraph (d)(1) of § 15.25 is given to the affected officer. [53 FR 15548, May 2, 1988. Redesignated and amended at 62 FR 19669, 19670, Apr. 23, 1997] § 15.25 Procedures. (a) Service of notice. (i) A statement that delinquent support payments equal or exceed the amount of support payable for 2 months under a support order, and a request that an allotment be initiated pursuant to 42 U.S.C. 665. (ii) A certified copy of the support order. (iii) The amount of the monthly support payment. Such amount may include arrearages, if a support order specifies the payment of such arrearages. The notice shall indicate how much of the amount payable shall be applied toward liquidation of the arrearages. (iv) Sufficient information identifying the officer to enable processing by the designated official. The following information is requested: (A) Full name; (B) Social Security Number; (C) Date of birth; and (D) Duty station location. (v) The full name and address of the allottee. The allottee shall be an authorized person, the authorized person's designee, or the recipient named in the support order. (vi) Any limitations on the duration of the support allotment. (vii) A certificate that the official sending the notice is an authorized person. (viii) A statement that delinquent support payments are more than 12 weeks in arrears, if appropriate. (2) The notice shall be accomplished by certified or registered mail, return receipt requested, or by personal service, upon the appropriate designated official, who shall note the date and time of receipt on the notice. (3) The notice is effective when it is received in the office of the designated official. (4) When the information submitted is not sufficient to identify the officer, the notice shall be returned directly to the authorized person with an explanation of the deficiency. However, prior to returning the notice if there is sufficient time, an attempt should be made to inform the authorized person who caused the notice to be served, that it will not be honored unless adequate information is supplied. (5) Upon receipt of effective notice of delinquent support payments, together with all required supplementary documents and information, the designated official shall identify the officer from whom moneys are due and payable. The allotment shall be established in the amount necessary to comply with the support order and to liquidate arrearages if provided by a support order when the maximum amount to be allotted under this provision, together with any other moneys withheld for support from the officer, does not exceed: (i) 50 percent of the officer's disposable earnings for any month where the officer asserts by affidavit or other acceptable evidence, that he/she is supporting a spouse and/or dependent child, other than a party in the support order. When the officer submits evidence, copies shall be sent to the authorized person, together with notification that the officer's support claim will be honored. If the support claim is contested by the authorized person, that authorized person may refer this matter to the appropriate court or other authority for resolution. (ii) 60 percent of the officer's disposable earnings for any month where the officer fails to assert by affidavit or other acceptable evidence that he/she is supporting a spouse and/or dependent child. (iii) Regardless of the limitations above, an additional 5 percent of the officer's disposable earnings shall be withheld when it is stated in the notice that the officer is in arrears in an amount equivalent to 12 or more weeks' support. (b) Disposable earnings. (1) Basic pay. (2) Special pay (including enlistment and reenlistment bonuses). (3) Accrued leave payments (basic pay portions only). (4) Aviation career incentive pay. (5) Incentive pay for Hazardous Duty. (6) Readjustment pay. (7) Diving pay. (8) Sea pay. (9) Severance pay (including disability severance pay). (10) Retired pay (including disability retired pay). (c) Exclusions. (1) Owed by the officer to the United States. (2) Required by law to be deducted from the remuneration or other payment involved, including, but not limited to: (i) Amounts withheld from benefits payable under Title II of the Social Security Act where the withholding is required by law. (ii) Federal employment taxes. (3) Properly withheld for federal and state income tax purposes if the withholding of the amounts is authorized by law and if amounts withheld are not greater than would be the case if the individual claimed all dependents to which he/she were entitled. The withholding of additional amounts pursuant to section 3402(i) of Title 26 of the United States Code may be permitted only when the officer presents evidence of a tax obligation which supports the additional withholding. (4) Deducted for servicemen's Group Life Insurance coverage. (5) Advances of pay that may be due and payable by the officer at some future date. (d) Officer notification. (i) That notice has been received from an authorized person, including a copy of the documents submitted; (ii) Of the maximum limitations set forth, with a request that the officer submit supporting affidavits or other documentation necessary for determining the applicable percentage limitation; (iii) That the officer may submit supporting affidavits or other documentation as evidence that the information contained in the notice is in error; (iv) That by submitting supporting affidavits or other necessary documentation, the officer consents to the disclosure of such information to the party requesting the support allotment; (v) Of the amount or percentage that will be deducted if the officer fails to submit the documentation necessary to enable the designated official to respond to the notice within the prescribed time limits; (vi) That legal counsel will be provided by the Office of the Assistant General Counsel for Administration; and (vii) Of the date that the allotment is scheduled to begin. (2) The officer shall be provided with the following: (i) A consultation in person with an attorney from the Office of the Assistant General Counsel for Administration, to discuss the legal and other factors involved with the officer's support obligation and his/her failures to make payment. (ii) Copies of any other documents submitted with the notice. (3) The Office of the Assistant General Counsel for Administration will make every effort to see that the officer receives a consultation concerning the support obligation and the consequences of failure to make payments within 30 days of the notice required in paragraph (d)(1). In the event such consultation is not possible, despite continuing good faith efforts to arrange a consultation, no action shall be taken to require an allotment from the pay and allowances of any NOAA Corps Officer until 30 days have elapsed after the notice described in paragraph (d)(1) is given to the affected officer. (4) If, within 30 days of the date of the notice, the officer has furnished the designated official affidavits or other documentation showing the information in the notice to be in error, the designated official shall consider the officer's response. The designated official may return to the authorized person, without action, the notice for a statutorily required support allotment together with the member's affidavit and other documentation, if the member submits substantial proof of error, such as: (i) The support payments are not delinquent. (ii) The underlying support order in the notice has been amended, superseded, or set aside. (e) Absence of funds. (2) Where it appears that moneys are only temporarily exhausted or otherwise unavailable, the authorized person shall be fully advised as to why, and for how long, the money will be unavailable. (3) In instances where the officer separates from active duty service, the authorized person shall be informed by the Office of Commissioned Personnel, NOAA Corps that the allotment is discontinued. (4) Payment of statutorily required allotments shall be enforced over other voluntary deductions and allotments when the gross amount of pay and allowances is not sufficient to permit all authorized deductions and collections. (f) Allotment of funds. (2) An allotment established under this Directive shall be adjusted or discontinued upon notice from the authorized person. (3) Neither the Department of Commerce nor any officer or employee thereof, shall be liable for any payment made from moneys due from, or payable by, the Department of Commerce to any individuals pursuant to notice regular on its face, if such payment is made in accordance with this subpart. If a designated official receives notice based on support which, on its face, appears to conform to the law of the jurisdiction from which it was issued, the designated official shall not be required to ascertain whether the authority that issued the orde had obtained personal jurisdiction over the member. (4) Effective date of allotment. (g) Designated official. Subpart D—Statement of Policy and Procedures Regarding Indemnification of Department of Commerce Employees Source: 62 FR 19670, Apr. 23, 1997, unless otherwise noted. § 15.31 Policy. (a) The Department of Commerce may indemnify a present or former Department employee who is personally named as a defendant in any civil suit in state or federal court, or other legal proceeding seeking damages against a present or former Department employee personally, for any verdict, judgment or other monetary award which is rendered against such employee, provided that the conduct giving rise to the verdict, judgment or award was taken within the scope of his/her employment and that such indemnification is in the interest of the Department as determined by the Secretary or his/her designee. (b) The Department may settle or compromise a personal damage claim against a present or former employee by the payment of available funds at any time provided the alleged conduct giving rise to the personal property claim was taken within the employee's scope of employment and such settlement is in the interest of the Department as determined by the Secretary or his/her designee. (c) Absent exceptional circumstances, as determined by the Secretary or his/her designee, the Department will not consider a request either to indemnify or to settle a personal damage claim before entry of an adverse verdict, judgment or award. (d) Any payment under this section either to indemnify a present or former Department employee or to settle a personal damage claim shall be contingent upon the availability of appropriated funds of the Department of Commerce. § 15.32 Procedures for the handling of lawsuits against Department employees arising within the scope of their office or employment. The following procedures shall be followed in the event that a civil action or proceeding is brought, in any court, against a present or former employee of the Department (or against his/her estate) for personal injury, loss of property or death, resulting from the Department employee's activities while acting within the scope of his/her office or employment: (a) After being served with process or pleadings in such an action or proceeding, the employee (or the executor(rix) or administrator(rix)) of the estate shall within five (5) calendar days of receipt, deliver all such process and pleadings or an attested true copy thereof, together with a fully detailed report of the circumstances of the incident giving rise to the court action or proceeding to the General Counsel. Where appropriate, the General Counsel, or his/her designee, may request that the Department of Justice provide legal representation for the present or former Department employee. (b)(1) Only if a present or former employee of the Department has satisfied the requirements of paragraph (a) of this section in a timely fashion, may the employee subsequently request indemnification to satisfy a verdict, judgment, or award entered against that employee. (2) No request for indemnification will be considered unless the employee has submitted a written request, with appropriate documentation, including copies of the verdict, judgment, appeal bond, award, or settlement proposal through the employee's supervisory chain to the head of the employee's component. The written request will include an explanation by the employee of how the employee was working within the scope of employment and whether the employee has insurance or any other source of indemnification. (3) The head of the component or his/her designee will forward the employee's request with a recommendation to the General Counsel for review. The request for indemnification shall include a detailed analysis of the basis for the recommendation. The head of the component will also certify to the General Counsel that the component has funds available to pay the indemnification. (c) The General Counsel or his/her designee will review the circumstances of the incident giving rise to the action or proceeding, and all data bearing upon the question of whether the employee was acting within the scope of his/her employment. Where appropriate, the agency shall seek the views of the Department of Justice and/or the U.S. Attorney for the district embracing the place where the action or proceeding is brought. (d) The General Counsel shall forward the request, the accompanying documentation, and the General Counsel's recommendation to the Secretary or his/her designee for decision.