Litigation; Final Rule DEPARTMENT OF DEFENSE

Federal RegisterJul 27, 1994

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SUMMARY: This final rule revises 32 CFR Part 516, Litigation, Army

Regulation 27-40, Litigation, previously published in the Federal

subpart to service of process (subpart B). The former ``investigative

report'' is replaced by ``litigation report'' reflecting current usage

(subpart C). A separate subpart is devoted to individual liability

(subpart D). This rule also treats environmental litigation (subpart

F), deletes coverage of criminal prosecutions in U.S. Magistrate and

District Courts, delegates more authority to the installation level to

determine release of information and appearance of witnesses (subpart

G); and updates procedures to obtain release from local or state jury

duty (subpart J).

EFFECTIVE DATE: This final rule is effective July 27, 1994.

ADDRESS: Office of the Judge Advocate General, ATTN: Litigation

Division (DAJA-LT), 901 North Stuart Street, Arlington, VA 22203-1837.

FOR FURTHER INFORMATION CONTACT: MAJ Kelly Wheaton, (703) 696-1638.

SUPPLEMENTARY INFORMATION: This part prescribes policy and procedures

for litigation in civilian court proceedings, including the following:

providing representation of the Army and its personnel in Federal and

state court proceedings; remedies for procurement fraud; environmental

litigation; bankruptcy; prosecution in Federal court of offenses in

which the Army has an interest; release of information and appearance

of witnesses in criminal and civil court actions; procedures to follow

when soldiers are summoned for jury duty; and, procedures for

cooperation with the Office of Special Counsel. This part does not

apply to DA or DOD proceedings such as courts-martial or administrative

boards.

Executive Order 12291

This final rule has been classified as nonmajor. The effect of the

this rule on the economy will be less than $100 million.

Regulatory Flexibility Act

This final rule has been reviewed with regard to the requirements

of the Regulatory Flexibility Act of 1980. This final rule does not

have a significant impact on small entities.

Paperwork Reduction Act

This final rule does not contain new reporting or recordkeeping

requirements subject to the approval by the Office of Management and

Budget under the requirements of the Paperwork Reduction Act of 1980

(44 U.S.C. 3507).

Kenneth L. Denton,

Army Federal Register Liaison Officer.

Accordingly, 32 CFR Part 516 is revised as follows:

PART 516--LITIGATION

Subpart A--General

Sec.

Sec. 516.1 Purpose.

Sec. 516.2 References.

Sec. 516.3 Explanation of abbreviations and terms.

Sec. 516.4 Responsibilities.

Sec. 516.5 Restriction on contact with DOJ.

Sec. 516.6 Appearance as counsel.

Sec. 516.7 Mailing addresses.

Subpart B--Service of Process

Sec. 516.8 General.

Sec. 516.9 Service of criminal process within the United States.

Sec. 516.10 Service of civil process within the United States.

Sec. 516.11 Service of criminal process outside the United States.

Sec. 516.12 Service of civil process outside the United States.

Sec. 516.13 Assistance in serving process overseas.

Sec. 516.14 Service of process on DA or Secretary of Army.

Subpart C--Reporting Legal Proceedings to HQDA

Sec. 516.15 General.

Sec. 516.16 Individual and supervisory responsibilities upon

commencement of legal proceedings.

Sec. 516.17 SJA or legal adviser responsibilities.

Sec. 516.18 Litigation alleging individual liability.

Sec. 516.19 Injunctive relief.

Sec. 516.20 Habeas corpus.

Sec. 516.21 Litigation against government contractors.

Sec. 516.22 Miscellaneous reporting requirements.

Sec. 516.23 Litigation reports.

Sec. 516.24 Preservation of evidence.

Sec. 516.25 DA Form 4.

Sec. 516.26 Unsworn declarations under penalty of perjury.

Subpart D--Individual Liability

Sec. 516.27 Scope.

Sec. 516.28 Policy.

Sec. 516.29 Federal statutes and regulations.

Sec. 516.30 Procedures for obtaining certification and DOJ

representation.

Sec. 516.31 Private counsel at government expense.

Sec. 516.32 Requests for indemnification.

Subpart E--Legal Proceedings Initiated by the United States Medical

Care and Property Claims

Sec. 516.33 General.

Sec. 516.34 Referral of medical care and property claims for

litigation.

Sec. 516.35 Preparation of claims for litigation.

Assertion of Other Claims

Sec. 516.36 Referral to Litigation Division.

Sec. 516.37 Proceedings to repossess government real property or

quarters or to collect delinquent rent.

Subpart F--Environmental Litigation

Sec. 516.38 Scope.

Sec. 516.39 Duties and procedures.

Subpart G--Release of Information and Appearance of Witness Scope

Sec. 516.40 General.

Sec. 516.41 Policy.

Sec. 516.42 Reference to HQDA.

Release of Records in Connection with litigation

Sec. 516.43 Release of Army and other agency records.

Sec. 516.44 Determination of release authorization.

Sec. 516.45 Records determined to be releasable.

Sec. 516.46 Records determined not to be releasable.

DA Personnel as Witnesses in Private Litigation

Sec. 516.47 Response to subpoenas, orders, or requests for

witnesses.

Sec. 516.48 Official information.

Sec. 516.49 Expert witnesses.

Sec. 516.50 Interference with mission.

Litigation in Which the United States Has an Interest

Sec. 516.51 Response to subpoenas, orders, or requests for

witnesses.

Sec. 516.52 Expert witnesses.

Sec. 516.53 News media and other inquiries.

Status, Travel, and Expenses of Witnesses

Sec. 516.54 Witnesses for the United States.

Sec. 516.55 Witnesses for a state or private litigant.

Sec. 516.56 Witnesses before foreign tribunals.

Subpart H--Remedies in Procurement Fraud and Corruption

Sec. 516.57 Purpose.

Sec. 516.58 Policies.

Sec. 516.59 Duties and procedures.

Sec. 516.60 Procurement fraud and irregularities programs at

MACOMs.

Sec. 516.61 Reporting requirements.

Sec. 516.62 PFD and HQ USACIDC coordination.

Sec. 516.63 Coordination with DOJ.

Sec. 516.64 Comprehensive remedies plan.

Sec. 516.65 Litigation reports in civil recovery cases.

Sec. 516.66 Administrative and contractual actions.

Sec. 516.67 Overseas cases of fraud or corruption.

Sec. 516.68 Program Fraud Civil Remedies Act (PFCRA).

Subpart I--Cooperation With the Office of Special Counsel

Sec. 516.69 Introduction.

Sec. 516.70 Policy.

Sec. 516.71 Duties.

Sec. 516.72 Procedures.

Sec. 516.73 Assistance from HQDA.

Subpart J--Soldiers Summoned to serve on State and Local Juries

Sec. 516.74 General.

Sec. 516.75 Policy.

Sec. 516.76 Exemption determination authority.

Sec. 516.77 Procedures for exemption.

Sec. 516.78 Status, fees, and expenses.

Appendix A to Part 516--References.

Appendix B to Part 516--Mailing Addresses.

Appendix C to Part 516--Department of Defense Directive 5405.2,

Release of Official Information in Litigation and Testimony by DOD

Personnel as Witnesses.

Appendix D to Part 516--Department of Defense Directive 7050.5,

Coordination of Remedies for Fraud and Corruption Related to

Procurement Activities.

Appendix E to Part 516--Department of Defense Directive 5505.5,

Implementation of the Program Fraud Civil Remedies Act.

Appendix F to part 516--Glossary.

Appendix G to Part 516--Figures.

Authority: 5 U.S.C. 552; 10 U.S.C. 218, 1037, 1089, 1552, 1553,

2036; 18 U.S.C. 219, 3401; 28 U.S.C. 50, 513, 515, 543; 31 U.S.C.

3729 and 41 U.S.C. 51; 42 U.S.C. 290, 2651; 43 U.S.C. 666

Subpart A--General

Sec. 516.1 Purpose.

(a) This part prescribes policies and procedures for the following:

(l) Defensive and affirmative litigation in Federal and state

civilian courts where the Army or DOD has an interest in the matter.

(2) Proceedings before Federal or state administrative bodies, such

as utility rate commissions.

(3) Release of official information and testimony by DA personnel

with regard to litigation.

(4) Remedies for procurement fraud and corruption.

(5) Environmental civil litigation and administrative proceedings.

(6) Proceedings before the Office of Special Counsel.

(b) This regulation does not apply to DA or DOD proceedings such as

courts-martial or administrative boards.

Sec. 516.2 References.

Applicable publications and forms are listed in Appendix A to this

part.

Sec. 516.4 Explanation of abbreviations and terms.

(a) The Glossary contains explanations of abbreviations and terms.

(b) The masculine gender has been used throughout this regulation

for simplicity and consistency. Any reference to the masculine gender

is intended to include women.

Sec. 516.4 Responsibilities.

(a) United States Department of Justice (DOJ). DOJ will defend

litigation in domestic and foreign courts, against the United States,

its agencies and instrumentalities, and employees whose official

conduct is involved. The various U.S. Attorney Offices, under the

oversight of the Attorney General, will conduct much of the

representation.

(b) The Judge Advocate General (TJAG). Subject to the ultimate

control of litigation by DOJ (including the various U.S. Attorney

Offices), and to the general oversight of litigation by the Army

General Counsel, TJAG is responsible for litigation in which the Army

has an interest. Only TJAG (or Chief, Litigation Division) will

communicate to DOJ the Army's position with regard to settlement of a

case.

(AJAG-CL). Responsible to TJAG for litigation issues; supervises Chief,

Litigation Division.

(d) Chief, Litigation Division. Reports to AJAG-CL and is

responsible for the following:

(1) Supervising litigation in which the Army has an interest.

(2) Acting for TJAG and Secretary of the Army on litigation issues,

including the authority to settle or compromise cases, subject to the

supervision of TJAG and AJAG-CL.

(3) Delegating cases if appropriate.

(4) Serving as primary contact with DOJ on litigation.

(5) Accepting service of process for DA and for the Secretary of

the Army in his official capacity. See 32 CFR Sec. 257.5).

(e) Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special

Attorneys. Army judge advocates and civilian attorneys, when appointed

as SAUSAs under 28 U.S.C. 543, will represent the Army's interests in

either criminal or civil matters in Federal court under the following

circumstances:

(1) Felony and misdemeanor prosecutions in Federal court. Army

attorneys, at the installation level, after being duly appointed (See

AR 27-10), will prosecute cases, in which the Army has an interest, in

Federal court. Army attorneys who prosecute criminal cases will not

represent the United States in civil litigation without authorization

from Chief, Litigation Division.

(2) SAUSAs for civil litigation. By assignment of TJAG and upon the

approval of the U.S. Attorney, Judge Advocates will serve within a U.S.

Attorney's office to represent the government in litigation in which

the Army or DOD has an interest. These Judge Advocates have the same

general authority and responsibility as an Assistant U.S. Attorney.

(3) Special Attorneys assigned to DOJ. By assignment of TJAG and

with the concurrence of the appropriate DOJ official, Judge Advocates

will work as Special Attorneys for DOJ. Special Attorneys are

authorized to represent the United States in civil litigation in which

the Army or DOD has an interest.

(f) Attorneys at Army activities or commands. SJAs or legal

advisers, or attorneys assigned to them, will represent the United

States in litigation only if authorized by this regulation or delegated

authority in individual cases by the Chief, Litigation Division.

(g) Commander, U.S. Army Claims Service (USARCS). The Commander,

USARCS, and USARCS attorneys, subject to AR 27-20, Chapter 4, will

maintain direct liaison with DOJ in regard to administrative settlement

of claims under the Federal Tort Claims Act.

(h) Chief, Contract Law Division, OTJAG. The Chief, Contract Law

Division, attorneys assigned to the Contract Law Division, and other

attorneys designated by the Chief, Contract Law Division, in litigation

involving taxation, will represent DA in negotiation, administrative

proceedings, and litigation, and maintain liaison with DOJ and other

governmental authorities.

(i) Legal Representatives of the Chief of Engineers. The Office of

Chief Counsel, attorneys assigned thereto, and other attorneys

designated by the Chief Counsel will maintain direct liaison with DOJ

in litigation and administrative proceedings arising from the

navigation, civil works, Clean Water Act 404 permit authority,

environmental response activities, and real property functions of the

U.S. Army Corps of Engineers.

(j) Chief Trial Attorney, Contract Appeals Division, USALSA. The

Chief Trial Attorney, attorneys assigned to the Contract Appeals

Division, and attorneys designated by the Chief Trial Attorney will

represent the government before the Armed Services Board of Contract

Appeals and the General Services Board of Contract Appeals. They will

maintain direct liaison with DOJ concerning appeals from ASBCA and

GSBCA decisions. The Chief Trial Attorney has designated COE attorneys

to act as trial attorneys in connection with COE contract appeals.

(k) Chief, Regulatory Law Office, USALSA. The Chief, Regulatory Law

Office, attorneys assigned to the Regulatory Law Office, and other

attorneys designated by the Chief, will represent DA consumer interests

in regulatory matters before state and Federal administrative agencies

and commissions, including but not limited to proceedings involving

rates and conditions for the purchase of services for communications

(except long-distance telephone), transportation, and utilities (gas,

electric, water and sewer). They will maintain direct liaison with DOJ

for communications, transportation, and utilities litigation.

(l) Chief, Intellectual Property Law Division, USALSA. The Chief,

Intellectual Property Law Division, and the attorneys assigned thereto

will represent DA in matters pertaining to patents, copyrights, and

trademarks. They will maintain direct liaison with DOJ concerning

intellectual property issues.

(m) Chief, Labor and Employment Law Office, OTJAG. The Chief, Labor

and Employment Law Office, attorneys assigned thereto, and attorneys

identified as labor counselors will represent DA in matters pertaining

to labor relations, civilian personnel, and Federal labor standards

enforcement before the following: Federal Labor Relations Authority;

Merit Systems Protection Board; Equal Employment Opportunity

Commission; Department of Labor; National Labor Relations Board; and,

state workmen's compensation commissions. In the event any individual

mentioned in this subparagraph intends to make a recommendation to DOJ

concerning an appeal of any case to a U.S. Court of Appeals, such

recommendation will first be coordinated with Litigation Division.

(n) Chief, Procurement Fraud Division, USALSA. The Chief,

Procurement Fraud Division, attorneys assigned thereto, and other

attorneys designated by the Chief will represent DA in all procurement

fraud and corruption matters before the Army suspension and debarment

authority and before any civil fraud recovery administrative body. They

will maintain liaison and coordinate remedies with DOJ and other

agencies in matters of procurement fraud and corruption.

(o) Chief, Environmental Law Division, USALSA. The Chief,

Environmental Law Division, attorneys assigned thereto, and other

attorneys designated by the Chief, ELD, will maintain direct liaison

with DOJ in all environmental and natural resources civil litigation

and administrative proceedings involving missions and functions of DA,

its major and subordinate commands, installations presently or

previously managed by DA, and other sites or issues in which DA has a

substantial interest, except as otherwise specifically provided in this

regulation.

(p) Chief, Criminal Law Division, OTJAG. The Chief, Criminal Law

Division, will have general oversight of felony and magistrate court

prosecutions conducted by Army lawyers acting as Special Assistant U.S.

Attorneys. (See subpart G of this part). The Chief will coordinate with

DOJ and other governmental agencies concerning the overall conduct of

these prosecutions.

Sec. 365.5 Restriction on contact with DOJ.

(a) General rule. Except as authorized by TJAG, the General

Counsel, the Chief of Litigation Division, or this regulation, no Army

personnel will confer or correspond with DOJ concerning legal

proceedings in which the Army has an interest.

(b) Exceptions. This prohibition does not preclude contact with DOJ

required by the Memorandum of Understanding between DOJ and DOD

relating to the investigation and prosecution of certain crimes. (See

AR 27-10, para 2-7). In addition, an installation SJA or legal adviser

is expected to maintain a working relationship with the U.S. Attorney

in each district within his geographical area. An SJA or legal adviser

should request the U.S. Attorney to advise him immediately when

litigation involving DA or its personnel is served on the U.S.

Attorney.

Sec. 516.6 Appearance as counsel.

(a) General. Military personnel on active duty and DA civilian

personnel will not appear as counsel before any civilian court or in

any preliminary proceeding, for example, deposition, in litigation in

which the Army has an interest without the prior written approval of

TJAG, except under the following conditions:

(1) The appearance is authorized by this regulation.

(2) The individual is a party to the proceeding.

(3) The appearance is authorized under an expanded legal assistance

program (See AR 27-3).

(4) The individual is a judge advocate assigned or detailed by TJAG

to DOJ to represent the United States in civil or criminal cases, for

example, a Special Assistant U.S. Attorney, or an attorney assigned to

Litigation Division.

(b) Procedure. All requests for appearance as counsel will be made

through Litigation Division to the Personnel, Plans and Training

Office, OTJAG. Requests for DA military or civilian attorneys to appear

in any civilian court or proceeding on behalf of a soldier who is also

facing UCMJ action will be delivered to the SJA, legal adviser, or

Regional Defense Counsel, as appropriate. The SJA or legal adviser will

forward the request to Litigation Division with an evaluation of the

case and recommendation. Regional Defense Counsel should send requests

for USATDS counsel to Chief, USATDS, who will forward the request to

Litigation Division. Privileged or otherwise sensitive client

information should only be submitted through USATDS channels.

Sec. 516.7 Mailing addresses.

Mailing addresses for organizations referenced in this regulation

are in Appendix B to this part.

Subpart B--Service of Process

Sec. 516.8 General.

(a) Defined. Process is a legal document that compels a defendant

in an action to appear in court or to comply with the court's demands,

for example, in a civil case a summons or subpoena, or in a criminal

case, a warrant for arrest, indictment, contempt order, subpoena, or

summons. Service of process is the delivery of the document to a

defendant to notify him of a claim or charge against him.

(b) Policy. DA personnel will follow the guidance of this chapter

when civil officials attempt to serve civil or criminal process on

individuals on Federal property.

enforcement personnel are adequately trained to respond to situations

which arise with regard to service of civil and criminal process. SJAs

or legal advisers shall provide guidance to law enforcement personnel

in these matters.

Sec. 516.9 Service of criminal process within the United States.

(a) Surrender of personnel. Guidance for surrender of military

personnel to civilian law enforcement officials is in Chapter 7 of AR

630-10 and AR l90-9. Army officials will cooperate with civilian law

enforcement authorities who seek the surrender of a soldier in

connection with criminal charges. Special rules apply when a bail

bondsman or other surety seeks custody of a soldier.

(b) Requests for witnesses or evidence in criminal proceedings. See

subpart H to this part.

Sec. 516.10 Service of civil process within the United States.

(a) Policy. DA officials will not prevent or evade the service or

process in legal actions brought against the United States or against

themselves in their official capacities. If acceptance of service of

process would interfere with the performance of military duties, Army

officials may designate a representative to accept service. DA

personnel sued in their individual capacity should seek legal counsel

concerning voluntary acceptance of process.

(b) Requests for witnesses or evidence in civil proceedings. See

subpart H to this part.

imposed by the commander, civil officials will be permitted to serve

Federal process. (See Fed. R. Civ. P. 4, 45).

(d) Process of state courts.

(1) In areas of exclusive Federal jurisdiction that are not subject

to the right to serve state process, the commander or supervisor will

determine whether the individual to be served wishes to accept service

voluntarily. A JA or other DA attorney will inform the individual of

the legal effect of voluntary acceptance. If the individual does not

desire to accept service, the party requesting service will be notified

that the nature of the exclusive Federal jurisdiction precludes service

by state authorities on the military installation.

(2) On Federal property where the right to serve process is

reserved by or granted to the state, in areas of concurrent

jurisdiction, or where the United States has only a proprietary

interest, Army officials asked to facilitate service of process will

initially proceed as provided in the preceding subparagraph. If the

individual declines to accept service, the requesting party will be

allowed to serve the process in accordance with applicable state law,

subject to reasonable restrictions imposed by the commander.

(e) Process of foreign courts. A U.S. District Court may order

service upon a person who resides in the judicial district of any

document issued in connection with a proceeding in a foreign or

international tribunal. (28 U.S.C. 1696). In addition, the U.S. State

Department has the power to receive a letter rogatory issued by a

foreign or international tribunal, to transmit it to a tribunal,

officer or agency in the United States, and to return it after

execution. (28 U.S.C. 1781). Absent a treaty or agreement to the

contrary, these provisions will govern.

(f) Seizure of personal property. State and Federal courts issue

orders (for example, writ of attachment) authorizing a levy (seizure)

of property to secure satisfaction of a judgment. DA personnel will

comply with valid state or Federal court orders commanding or

authorizing the seizure of private property to the same extent that

state or Federal process is served.

Sec. 516.11 Service of criminal process outside the United States.

Army Regulation 630-10 and international treaties, such as status

of forces agreements, govern the service of criminal process of foreign

courts and the surrender of soldiers to foreign civilian law

enforcement officials.

Sec. 516.12 Service of civil process outside the United States.

(a) Process of foreign courts. In foreign countries service of

process issued by foreign courts will be made under the law of the

place of service, as modified by status of forces agreements, treaties

or other agreements. In foreign areas under exclusive U.S.

jurisdiction, service of process issued by foreign courts will be made

under the law specified by appropriate U.S. authority.

(b) Process of Federal courts. Service of process on U.S. citizens

or residents may be accomplished under the following provisions: The

Hague Convention, reprinted in 28 USCA Federal Rules of Civil

Procedure, following Rule 4; Fed. R. Civ. P. 4(i); 28 USC 1781 and

1783; and, the rules of the Federal court concerned. If a DA official

receives a request to serve Federal process on a person overseas, he

will determine if the individual wishes to accept service voluntarily.

Individuals will be permitted to seek counsel. If the person will not

accept service voluntarily, the party requesting service will be

notified and advised to follow procedures prescribed by the law of the

foreign country concerned.

serve state court process on a person overseas, he will determine if

the individual wishes to accept service voluntarily. Individuals will

be permitted to seek counsel. If the person will not accept service

voluntarily, the party requesting service will be notified and advised

to follow procedures prescribed by the law of the foreign country

concerned. (See, for example, The Hague Convention, reprinted in 28

USCA Federal Rules of Civil Procedure, following Rule 4).

(d) Suits against the United States. DA personnel served with

foreign civil process will notify the appropriate SJA or legal adviser,

who will return the document to the issuing authority explaining the

lack of authority to accept service for the United States. Service on

the United States must be made upon DOJ through established diplomatic

channels.

Sec. 516.13 Assistance in serving process overseas.

(a) Europe. For information and assistance concerning service of

process of persons assigned to or accompanying U.S. Forces in Europe,

contact the Foreign Law Branch, International Law Division, Office of

The Judge Advocate, Headquarters U.S. Army, Europe, and Seventh Army,

Unit 29351, (Heidelberg, Germany) APO AE 09014.

(b) Korea. For information and assistance concerning service of

process of persons assigned to or accompanying U.S. Forces in Korea,

contact Staff Judge Advocate, US Forces Korea (Seoul, Republic of

Korea), APO AP 96205.

assistance concerning service of process of persons assigned to or

accompanying forces in the U.S. Army Southern Command, contact Staff

Judge Advocate, HQ, US Army South, Fort Clayton, Panama, APO AA 34004-

5000.

Sec. 516.14 Service of process on DA or Secretary of Army.

The Chief, Litigation Division, shall accept service of process for

Department of the Army or for the Secretary of the Army in his official

capacity.

Subpart C--Reporting Legal Proceedings to HQDA

Sec. 516.15 General.

(a) Legal proceedings requiring reporting. Actions must be taken

upon commencement of litigation or administrative proceedings in which

the United States has an interest. Typically, the Secretary of the

Army, DA, the United States, or DA personnel are named as defendant in

a lawsuit or as respondent in an administrative proceeding. A

nonexclusive listing of cases in which the United States has an

interest include the following:

(1) Suits for damages, injunctive relief, or other action filed

against the government or against DA personnel in their official

capacity.

(2) Suits alleging individual liability arising from performance of

official duties by DA personnel.

(3) Actions affecting DA operations or activities or which might

require official action by DA personnel.

(4) Actions arising out of DA contracts, subcontracts, or purchase

orders wherein the government might be required to reimburse a

contractor for litigation expenses.

(5) Bankruptcy proceedings in which the United States or its

instrumentalities may have an interest, including bankruptcies

involving government contractors.

(b) Command and agency responsibility. Commanders and supervisors

of Army units, installations, or organizations will ensure reports

required by this section are promptly submitted.

made telephonically or mailed to the responsible organization at DA.

Appendix B to this part contains mailing addresses for these offices.

Except in the situations described below, reports required by this

chapter will be made to Litigation Division:

(1) Actual or potential litigation (or administrative infringement

claims) involving patents, copyrights, or trademarks will be made to

Intellectual Property Law Division.

(2) Reports of pending or prospective litigation involving taxation

will be made to Contract Law Division.

(3) Communications, transportation, and utility services reports

will be made to Regulatory Law Office.

(4) Reports involving environmental and natural resource litigation

and administrative proceedings will be made to Environmental Law

Division.

(5) Potential civil recovery reports in cases of procurement fraud

and corruption will be made to Procurement Fraud Division.

(6) Reports involving the felony prosecution program and magistrate

court prosecutions will be made to Criminal Law Division, OTJAG.

(7) Cases before the Armed Services Board of Contract Appeals and

the General Services Board of Contract Appeals will be made to Contract

Appeals Division.

(d) Classified information. Information required by this regulation

will be submitted in an unclassified form if possible. If downgrading

or declassification is not feasible, the classified material should be

separated from the report and forwarded under separate cover.

(e) Other reporting requirements. Reports required by this chapter

are in addition to and do not satisfy any other reporting requirement,

such as the following: notifying the FBI of offenses pursuant to AR 27-

10; submitting serious incident reports pursuant to AR 190-40;

reporting procurement fraud or other irregularities per Defense Federal

Acquisition Regulation Supplement, section 209.406-3 (48 CFR 209.406-

3); reporting the exercise of criminal jurisdiction by foreign

tribunals over U.S. personnel pursuant to AR 27-50; or, reporting

bankruptcies per AR 37-103.

(f) Reports control exemption. The reports required herein are

exempt from reports control under AR 335-15, paragraphs 3-3a(5) and 5-

2e(4).

Sec. 516.16 Individual and supervisory procedures upon commencement of

legal proceedings.

(a) Individual procedures. DA personnel served with civil or

criminal process concerning a proceeding in which the United States has

an interest (Sec. 516.15) will immediately inform their supervisor and

furnish copies of process and pleadings. There is no requirement to

notify supervisors of purely private litigation.

(b) Supervisory procedures. When supervisors learn that legal

proceedings in which the United States has an interest have commenced,

the supervisor will forward a copy of all process and pleadings, along

with other readily available information, to the SJA or legal adviser.

If no legal officer is available locally, the documents will be

forwarded to the SJA or legal adviser of the next higher headquarters.

Sec. 516.17 SJA or legal adviser procedures.

(a) Immediate notice to HQDA. When an SJA or legal adviser learns

of litigation in which the United States has an interest, and it

appears that HQDA is not aware of the action, the SJA or legal adviser

will telephonically notify the responsible HQDA office. (See

Sec. 516.15(c)). Immediate notice is particularly important when

litigation involves one of the following: a lawsuit against an employee

in his individual capacity; a motion for a temporary restraining order

or preliminary injunction; a habeas corpus proceeding; a judicial or

administrative proceeding involving less than 60 days to file an

answer; and, actions with possible Congressional, Secretarial, or Army

Staff interest. For legal proceedings instituted in foreign tribunals,

the SJA or legal adviser will also notify the major overseas commander

concerned and the appropriate U.S. Embassy or Legation. A telephonic

report to HQDA should include the following:

(1) Title or style of the proceeding.

(2) Full names and addresses of the parties.

(3) Tribunal in which the action is filed, date filed, docket

number, when and on whom service of process was made, and date by which

pleading or response is required.

(4) Nature of the action, amount claimed or relief sought.

(5) Reasons for immediate action.

(b) Transmission of process, pleadings, and related papers. Unless

instructed otherwise by HQDA, the SJA or legal adviser will FAX or mail

HQDA a copy of all process, pleadings, and related papers. Use of

express mail or overnight delivery service is authorized.

in the United States, the SJA or legal adviser, unless instructed

otherwise by HQDA, will notify the appropriate U.S. Attorney and render

assistance as required.

Sec. 516.18 Litigation alleging individual liability.

See Subpart D for procedures to follow when DA personnel, as a

result of performance of official duties, are either sued in their

individual capacities or face criminal charges.

Sec. 516.19 Injunctive relief.

(a) General. Plaintiffs may attempt to force government action or

restraint in important operational matters or pending personnel actions

through motions for temporary restraining orders (TRO) or preliminary

injunctions (PI). Because these actions can quickly impede military

functions, immediate and decisive action must be taken.

(b) Notification to HQDA and U.S. Attorney. The SJA or legal

adviser will immediately notify Litigation Division or other

appropriate office at HQDA when a motion for TRO or PI has been, or is

about to be, filed. The SJA or legal adviser will also notify the

responsible U.S. Attorney.

assist the DOJ or DA attorney responsible for the litigation.

Installation attorneys or support personnel should begin accumulating

relevant documentary evidence and identifying witnesses. If requested,

installation attorneys will prepare a legal memorandum concerning the

motion, giving particular attention to the following issues relevant to

a court granting injunctive relief:

(1) Plaintiff's likelihood of success on the merits.

(2) Whether plaintiff will be irreparably harmed if injunctive

relief is not granted.

(3) Harm to defendant and other parties if injunctive relief is

granted.

(4) The public interest.

Sec. 516.20 Habeas Corpus.

(a) General. A soldier may file a writ of habeas corpus to

challenge his continued custody (usually in a post court-martial

situation) or retention in the Army. As is the case with injunctive

relief in the preceding paragraph, installation SJAs and legal advisers

must take immediate action.

(b) Notification to Litigation Division and U.S. Attorney. The SJA

or legal adviser will notify Litigation Division and the responsible

U.S. Attorney's Office immediately upon learning that a petition for

writ of habeas corpus has been filed. All relevant documentary evidence

supporting the challenged action should be assembled immediately.

a writ of habeas corpus, the court will dismiss the petition, issue the

writ, or order the respondent to show cause why it should not be

granted. If a writ or order to show cause is issued, the SJA or legal

adviser should be prepared to assist the responsible Litigation

Division or DOJ attorney in preparing a return and answer. If so

directed, the SJA will also prepare a memorandum of points and

authorities to accompany the return and answer. The government's

response should cover the following: whether the Army has custody of

petitioner; whether respondent and petitioner are within the judicial

district; and, whether appellate or administrative remedies have been

exhausted.

(d) Writs or orders issued by state courts. No state court, after

being judicially informed that a petitioner is in custody under the

authority of the United States, should interfere with that custody or

require that petitioner be brought before the state court. A deserter,

apprehended by any civil officer having authority to apprehend

offenders under the laws of the United States or of any state,

district, territory, or possession of the United States, is in custody

by authority of the United States. If a writ of habeas corpus is issued

by a state court, the SJA or legal adviser will seek guidance from

Litigation Division.

(e) Foreign court orders. A foreign court should not inquire into

the legality of restraint of a person held by U.S. military authority.

If a foreign court issues any process in the nature of a writ of habeas

corpus, the SJA or legal adviser will immediately report the matter to

the appropriate U.S. forces commander and to Litigation Division.

Sec. 516.21 Litigation against government contractors.

(a) General. A contract might require that the government reimburse

a contractor (or subcontractor) for adverse judgments or litigation

expenses. Unless a contractor or subcontractor facing a lawsuit

requests representation by DOJ, the Army presumes the contractor will

obtain private counsel to defend the case. If the contract so allows,

however, the contractor may request and HQDA may recommend that DOJ

represent the contractor if it is in the best interests of the United

States.

(b) Actions by SJA or legal adviser. If a contractor or

subcontractor faces litigation and the underlying contract with the

government requires reimbursement for adverse judgments or costs of the

litigation, the SJA or legal adviser, through the contracting officer,

should determine if the contractor desires representation by DOJ. If

so, the contractor or authorized agent will sign a request for

representation. (See Figure D-3, Appendix G, of this part.) The SJA or

legal adviser will determine whether, in his opinion, representation by

DOJ should be granted. He will prepare a memorandum to support his

recommendation, especially concerning any issue regarding the

government's obligation to reimburse the contractor under the contract.

The SJA or legal adviser will forward his memorandum, along with the

contractor's request, to Litigation Division.

will evaluate the submission and decide if it is in the Army's best

interest that the request be granted. He will prepare a memorandum

supporting his decision and send the packet to DOJ. The Chief's

decision constitutes the final DA position on the matter. If DOJ grants

the contractor's request, the Chief, Litigation Division, will ensure

that the contractor is notified through the SJA or legal adviser and

the contracting officer.

(d) Private Counsel. A contractor represented by DOJ may ask that

private counsel assist the DOJ attorney in the litigation. The DOJ

attorney will remain in control of the litigation, and the fees for

private counsel will not be reimbursable except under unusual

circumstances. The contractor must seek both DOJ and DA approval to

employ private counsel when DOJ representation has been granted. Even

if DOJ and DA grant authority to employ private counsel, the

contracting officer will determine whether a contractor will be

reimbursed under the contract for private counsel.

(e) Settlement. The contractor, unless the contract specifies

otherwise, will ultimately decide whether to compromise a suit.

Reimbursement under the contract is determined by the contracting

officer, with the advice of his attorney.

Sec. 516.22 Miscellaneous reporting requirements.

SJAs or legal advisers will comply with the directives cited below

concerning actual or prospective litigation involving the following

types of cases:

(a) Taxation.

(1) Contractor transactions. (FAR and DFARS, 48 CFR parts 29 and

229).

(2) Army and Air Force Exchange Service (AAFES) activities. (AR 60-

20).

(3) Purchase or sale of alcoholic beverages. (AR 215-2).

(4) Nonappropriated fund and related activities. (AR 215-1).

(b) Tort and contract claims, insurance and litigation involving

nonappropriated fund activities. (AR 215-1).

(d) Communications, transportation, and utility services

administrative proceedings. Any contracting officer or other Army

official responsible for the acquisition of communications,

transportation, utilities (gas, electric, water and sewer), or military

mail services, who becomes aware of any action or proceeding of

interest to the Army, will promptly refer the matter to the SJA or

legal adviser, who will take the actions prescribed in Sec. 516.17 of

this part. Examples of actions requiring referral follow: new or

amended rates, regulations, or conditions of service; applications for

authority to discontinue or initiate service; changes in

electromagnetic patterns causing adverse communications interference;

or, zoning proposals affecting historic or aesthetic preservation. In

addition, the SJA or legal adviser will transmit the following to

Regulatory Law Office:

(1) The names and addresses of any parties intervening and the

substance of their positions.

(2) Names of government users affected by any change.

(3) Copy of any proposed rates, rules, or regulations.

(4) A recommendation whether the Army should intervene in the

action or proceeding. If intervention is recommended, provide a

memorandum to support the recommendation.

(e) Legal proceedings overseas. Foreign communications,

transportation, and utility service proceedings need not be reported.

In other legal proceedings instituted in a foreign country, the SJA or

legal adviser will take the actions prescribed in Sec. 516.17 of this

part.

(f) Maritime claims. Admiralty and maritime claims within the

purview of Chapter 8, AR 27-20, which have been investigated and

processed under AR 55-19 or other applicable regulations, will be

referred to USARCS.

(g) Army and Air Force Exchange Service litigation. The SJA or

legal adviser will send a copy of all documents relating to litigation

against AAFES to General Counsel, AAFES, P.O. Box 660202, Dallas, TX

75266-0202.

(h) Bankruptcy. Reports of bankruptcy or insolvency proceedings

shall be made in accordance with this regulation and AR 37-103.

Sec. 516.23 Litigation reports.

The SJA or legal adviser will prepare a litigation report when

directed by HQDA. The report will contain the following sections:

Statement of Facts; Setoff or Counterclaim; Responses to Pleadings;

Memorandum of Law; Witness List; and, Exhibits.

(a) Statement of Facts. Include a complete statement of the facts

upon which the action and any defense thereto are based. Where

possible, support facts by reference to documents or witness

statements. Include details of previous administrative actions, such as

the filing and results of an administrative claim. If the action is

predicated on the Federal Tort Claims Act, include a description of the

plaintiff's relationship to the United States, its instrumentalities,

or its contractors. Also include a statement whether an insurance

company or other third party has an interest in the plaintiff's claim

by subrogation or otherwise and whether there are additional claims

related to the same incident.

(b) Setoff or Counterclaim. Discuss whether setoff or counterclaim

exists. If so, highlight the supportive facts.

appropriate response to the pleadings. (See Figure C-1, to this part).

Discuss whether allegations of fact are well-founded. Refer to evidence

that refutes factual allegations.

(d) Memorandum of Law. Include a brief statement of the applicable

law with citations to legal authority. Discussions of local law, if

applicable, should cover relevant issues such as measure of damages,

scope of employment, effect of contributory negligence, or limitations

upon death and survival actions. Do not unduly delay submission of a

litigation report to prepare a comprehensive memorandum of law.

(e) Potential witness information. List each person having

information relevant to the case and provide an office address and

telephone number. If there is no objection, provide the individual's

social security account number, home address, and telephone number.

This is ``core information'' required by Executive Order No. 12778

(Civil Justice Reform). Finally, summarize the information or potential

testimony that each person listed could provide.

(f) Exhibits.

(l) Attach a copy of all relevant documents. This is ``core

information'' required by Executive Order No. 12778 (Civil Justice

Reform). Unless otherwise directed by HQDA, each exhibit should be

tabbed and internally paginated. References to exhibits in the

litigation report should be to page numbers of particular exhibits.

(2) Copies of relevant reports of claims officers, investigating

officers, boards or similar data should be attached, although such

reports will not obviate the requirement for preparation of a complete

litigation report.

(3) Prepare an index of tabs and exhibits.

(4) Where a relevant document has been released pursuant to a FOIA

request, provide a copy of the response, or otherwise identify the

requestor and the records released.

(g) Distribution and number of copies. Unless HQDA directs

otherwise, SJAs or legal advisers will mail (first class) an original

and one copy of the litigation report to the responsible HQDA office

(See Sec. 516.15 of this part) and one copy to the U.S. Attorney's

Office handling the case. If possible, record the litigation report

onto a magnetic diskette, using either WordPerfect, Enable, or ACSII,

and send it to Litigation Division.

Sec. 516.24 Preservation of evidence.

Because documents needed for litigation or administrative

proceedings are subject to routine destruction, the SJA or legal

adviser will ensure that all relevant documents are preserved.

Sec. 516.25 DA Form 4.

(a) General. The DA Form 4 (See Figure C-2, Appendix G, of this

part) is used to authenticate Army records or documents. Documents

attached to a properly prepared and sealed DA Form 4 are self-

authenticating. (See Fed. R. Evid. 902).

(b) Preparation at the installation level. A DA Form 4 need not be

prepared until the trial attorney presenting the government's case

identifies documents maintained at the installation level which he will

need at trial. Once documents are identified, the custodian of the

documents will execute his portion of the DA Form 4. (See Figure C-2,

Appendix G, of this part). The custodian certifies that the documents

attached to the DA Form 4 are true copies of official documents.

Documents attached to each form should be generally identified; each

document need not be mentioned specifically. Only the upper portion of

the form should be executed at the local level.

attached thereto, HQDA will affix a ribbon and seal and deliver it to

the Office of the Administrative Assistant to the Secretary of the

Army. That office will place the official Army seal on the packet.

Sec. 516.26 Unsworn declarations under penalty of perjury.

(a) General. Under the provisions of 28 U.S.C. l746, whenever any

matter is required or permitted to be established or proven by a sworn

statement, oath or affidavit, such matter may also be established or

proven by an unsworn written declaration under penalty of perjury.

Because such declaration does not require a notary or other official to

administer oaths, individuals preparing statements for use in

litigation should consider using this format. (See Figure C-3, Appendix

G, of this part).

(b) When executed within the United States. Place the following at

the end of the witness statement:

I declare under penalty of perjury that the foregoing is true

and correct. (28 U.S.C. 1746).

Executed on

----------------------------------------------------------------------

(Date) (Signature)

at the end of the witness statement:

I declare under penalty of perjury under the laws of the United

States of America that the foregoing is true and correct. (28 U.S.C.

1746).

Executed on

----------------------------------------------------------------------

(Date) (Signature)

Subpart D--Individual Liability

Sec. 516.27 Scope.

This subpart guidance when DA personnel, as a result of the

performance of their official duties, are either sued in their personal

capacity, or are charged in a criminal proceeding. Examples of civil

actions alleging individual liability include the following: a medical

malpractice lawsuit against health care providers; suits resulting from

motor vehicle accidents; constitutional torts; or, common law torts

such as assault, libel, or intentional infliction of emotional

distress. Likewise, state or Federal criminal charges can arise from

the performance of official duties, including environmental crimes or

motor vehicle accidents.

Sec. 516.28 Policy.

(a) General. Commanders, supervisors, and SJAs or legal advisers

will give highest priority to compliance with the requirements of this

chapter with regard to current or former DA personnel who face criminal

charges or civil litigation in their individual capacity as a result of

performance of their official duties.

(b) DOJ policy on representation. If in the best interest of the

United States, upon request of the individual concerned, and upon

certification by his agency that he was acting within the scope of his

employment, DOJ may represent present and former DA personnel sued

individually as a result of actions taken within the scope of their

employment. Representation can be declined for a variety of reasons,

including but not limited to the following: the employee was not acting

within the scope of his office; there is a conflict of interest; or,

actions were not taken in a good faith effort to conform to law.

Sec. 516.29 Federal statutes and regulations.

(a) Federal Tort Claims Act (FTCA). (28 U.S.C. 1346(b), 2671-2680).

A waiver of sovereign immunity which, with certain exceptions, makes

the United States liable for tort claims in the same manner as a

private individual.

(b) Federal Employees Liability Reform and Tort Compensation Act of

l988 (FELRTCA or the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563

(1988) (codified at and amending 28 U.S.C. 2671, 2674, 2679). FELRTCA,

by amending the Federal Tort Claims Act, makes the FTCA the exclusive

remedy for common law tort claims arising from actions taken by Federal

employees acting within the scope of employment. The law was passed to

eliminate problems caused by Westfall v. Erwin, 484 U.S. 292 (1988).

malpractice). This provision, commonly referred to as the Gonzales Act,

makes the FTCA the exclusive remedy for suits alleging medical

malpractice against a military health care provider.

(d) 28 CFR 50.15 (Representation of Federal officials and employees

by Department of Justice attorneys [. . .] in civil, criminal, and

congressional proceedings in which Federal employees are sued,

subpoenaed, or charged in their individual capacities). These DOJ

regulations set out the policy and procedures for requesting

representation in individual liability cases. See also 28 CFR part 15

(Defense of Certain Suits Against Federal Employees, etc.).

(e) 28 CFR 50.16 (Representation of Federal employees by private

counsel at Federal expense).

Sec. 516.30 Procedures for obtaining certification and DOJ

representation.

(a) SJA or legal adviser procedures. When an SJA or legal adviser

learns of a criminal charge or of a lawsuit alleging individual

liability against DA personnel as a result of performance of official

duties, he will take the following actions:

(1) Immediately notify Litigation Division and the appropriate U.S.

Attorney and FAX or express deliver copies of process and pleadings to

each office. Where time for response is limited, request that the U.S.

Attorney either petition the court for an extension of time, or provide

temporary counsel and representation pending formal approval.

(2) Investigate whether the employee was acting within the scope of

his office or employment. Obtain, if possible, statements from the

defendant, supervisors, and witnesses.

(3) Advise the individual defendant of the rights and conditions

set out in 28 CFR 50.15, which include the following:

(i) His right to request representation by a DOJ attorney and, in

appropriate cases, certification that he was acting within the scope of

employment. (See 28 U.S.C. 2679; 28 CFR 50.15).

(ii) The right to request private counsel at government expense,

subject to the availability of funds. (See 28 CFR 50.16).

(iii) That the United States is not obligated to pay or indemnify

defendant for any judgment rendered against him in his individual

capacity.

(4) If the defendant desires certification or DOJ representation,

have him sign a request. (See Figure D-1, Appendix G, of this part).

Obtain a signed scope of employment statement from the defendant's

supervisor. (Figure D-2, Appendix G, of this part).

(5) Prepare a report with, at a minimum, the following information:

facts surrounding the incident for which defendant is being sued and

those relating to scope of employment; the SJA's or legal adviser's

conclusions concerning scope of employment; and, a recommendation

whether certification by the Attorney General or representation by a

DOJ attorney should be granted.

(6) In cases involving National Guard personnel, address also the

following: whether defendant was acting in a state (Title 32 U.S.C.) or

Federal (Title 10 U.S.C.) capacity during relevant periods (include

orders); if defendant was acting under state authority, is it

nevertheless in the interest of the United States to represent the

individual; any impact on policies or practices of DA, the National

Guard Bureau, or DOD; whether the relief requested can be granted only

by a Federal officer or agency; and, whether Federal law or regulation

required actions by state officials.

(7) Send the report, request for representation, and scope of

employment statements to Chief, Litigation Division.

(b) Chief, Litigation Division, procedures. The Chief, Litigation

Division, will review the report and evidence regarding representation

and scope of employment and will determine whether certification and

representation are appropriate. He will send his recommendation to the

appropriate U.S. Attorney or office within DOJ. The Chief, Litigation

Division, will notify the defendant of DOJ's decision.

Sec. 516.31 Private counsel at government expense.

(a) General. DA personnel, sued in their individual capacity or

facing criminal charges as a result of performance of official duties,

have no right to employ a private sector counsel at government expense

or to expect reimbursement for the same. For proceedings in the United

States, a request for employment of counsel at government expense may

be approved by DOJ, contingent among other things upon availability of

funds and a determination that employment of private counsel at

government expense is in the best interests of the United States. (See

28 CFR 50.16). Special rules apply in overseas areas. (See paragraph

(e) of this section).

(b) Individual request procedures. The individual will prepare a

request that private counsel be employed for him at government expense.

The request must also contain the following statement: ``I understand

that the United States is not required to employ private counsel on my

behalf, and that I may be responsible for expenses incurred prior to

proper authorization by the Department of the Army or the Department of

Justice.''

submitted through the individual's supervisors, who will make a

recommendation and forward the packet to the local SJA or legal

adviser. The SJA or legal adviser will prepare his own recommendation

and forward the matter to Litigation Division.

(d) Chief, Litigation Division, procedures. If the Chief,

Litigation Division, determines that the request for private counsel is

meritorious, he will prepare an appropriate recommendation and forward

the packet to Civil Division, DOJ, for final approval.

(e) Special actions in foreign countries. Employment of private

counsel in foreign proceedings is governed by AR 27-50 (Status of

Forces Policies, Procedures, and Information). Under the authority of

10 U.S.C. 1037, soldiers, as well as employees or those accompanying

the armed forces overseas, may be granted individual counsel in civil

and criminal proceedings, under the criteria of AR 27-50.

Sec. 516.32 Requests for indemnification.

(a) Policy. An individual liable for a judgment rendered against

him in his individual capacity has no right to reimbursement from DA.

DA will consider, however, a request for indemnification from DA

personnel where conduct within the scope of official duties has

resulted in personal liability and indemnification is in the best

interests of the United States. Indemnification is strictly contingent

upon an appropriation to pay the judgment, as well as availability of

such funds.

(b) Individual request procedures. An individual against whom an

adverse judgment has been rendered may request indemnification. The

request must include, at a minimum, the following: how the employee was

acting within the scope of his employment; whether the requestor has

insurance or any other source of indemnification; and, how

reimbursement is in the best interests of the United States. The

request must also contain the following statements: ``I understand that

acceptance of this request for indemnification for processing by DA

does not constitute an acceptance of any obligation to make such a

payment. I also understand that payment is contingent on availability

of funds and that it will only be made if such is determined to be in

the best interests of the United States.'' The individual should attach

a copy of relevant documents, for example, court's opinion, judgment,

and other allied papers.

will be submitted through supervisory channels to the local SJA or

legal adviser. Each supervisor will make a recommendation on the

propriety of reimbursement.

(d) Chief, Litigation Division, procedures. Requests for

indemnification will be forwarded to Chief, Litigation Division. The

Chief, Litigation Division, will examine the submission and, after

consultation with DOJ or other agencies, forward the packet with his

recommendation to the Army General Counsel. The General Counsel will

obtain a final decision by the Secretary of the Army or his designee on

the matter. There is no administrative appeal of the Secretary's (or

his designee's) decision.

Subpart E--Legal Proceedings Initiated by the United States Medical

Care and Property Claims

Sec. 516.33 General.

(a) Authorities.

(1) Federal Medical Care Recovery Act (42 U.S.C. 2651). The act

provides for the recovery of medical care expenses incurred because of

a tortfeasor's actions.

(2) Federal Claims Collection Act (31 U.S.C. 3711). The act

provides for the collection of claims for money or property arising

from the activities of Federal agencies.

(3) Third-party Collection Program (10 U.S.C. 1095). The statute

provides for collection of reasonable costs of health-care services,

provided in facilities of the uniformed services to covered

beneficiaries, from private insurers or third-party payers. In

accordance with DOD Instruction 6010.15, ``Third Party Collection (TPC)

Program,'' 7 March 1991, the authority to settle or waive a DOD claim

under the act is delegated to TJAG or to his designee.

(4) Executive Order No. 12778, (56 FR 55195; 3 CFR, 1991 Comp. p.

359), Civil Justice Reform. This order establishes several requirements

on Federal agencies involved in litigation or contemplating filing an

action on behalf of the United States.

(5) AR 27-20, Claims. Chapter l4 (Affirmative Claims) contains

comprehensive guidance for Recovery Judge Advocates (RJAs) in the

administrative determination, assertion, collection, settlement, and

waiver of claims in favor of the U.S. for property damage and for

medical care claims.

(b) Duties and Procedures. In accordance with Chapter 14, AR 27-20,

Commander, USARCS, has supervisory responsibility over the

administrative processing of property and medical care claims by RJAs.

The Commander, U.S. Army Health Services Command (HSC), has supervisory

responsibility over the Third Party Collection Program (TPCP). The HSC

TPCP Implementation Plan effects DOD Instruction 6010.15 and

establishes procedures for processing TPC claims. Litigation Division,

in conjunction with DOJ and U.S. Attorneys, is responsible for

pursuing, through litigation, claims not resolved administratively. DOJ

is ultimately responsible for initiating litigation for the United

States. (28 U.S.C. 515).

attorneys. The Army incurs potentially recoverable expenses when it

provides medical care to soldiers or dependents injured by tortfeasors

(for example, a soldier is hospitalized after an automobile accident).

When injured personnel employ a private attorney to sue the tortfeasor,

it may be in the Government's best interests to enter into an agreement

with the private attorney to include the Army's medical care claim.

(d) Statute of limitations. There is a three year statute of

limitations for actions in favor of the U.S. for money damages founded

upon tort. (28 U.S.C. 2415(b)). Limitations periods can vary, however,

depending upon the theory of liability and the jurisdiction involved.

RJAs must be alert to the applicable period of limitations. A case

referred for litigation should arrive at Litigation Division at least 6

months before the expiration of the limitations period.

(e) Reporting of recoveries. Amounts recovered through litigation

will be reported to USARCS by Tort Branch, Litigation Division, or,

where referred directly to a U.S. Attorney or the Nationwide Central

Intake Facility (NCIF), by the responsible RJA.

Sec. 516.34 Referral of medical care and property claims for

litigation.

(a) Criteria for referral. The RJA will forward the claims file and

a litigation report (See Sec. 516.35 of this part) through USARCS to

Litigation Division when the claim has not been resolved

administratively and any of the following conditions exist:

(1) The claim exceeds $5,000;

(2) It involves collection from the injured party or his attorney;

(3) The claim raises an important question of policy; or,

(4) There is potential for a significant precedent.

(b) Alternative methods. When none of the conditions cited in the

preceding subparagraph are present, the RJA may refer the claim

directly to the U.S. Attorney for the district in which the prospective

defendant resides. Similar property claims may be referred through

USARCS to DOJ's Nationwide Central Intake Facility (NCIF) rather than

directly to the U.S. Attorney. Notice of all such referrals shall be

provided through USARCS to Tort Branch, Litigation Division. The RJA

should be ready to provide support to the U.S. Attorney if requested.

will be closed if the U.S. Attorney determines further action is

unwarranted. If the RJA disagrees, the file should be forwarded with

the RJA's recommendation through USARCS to Litigation Division.

Sec. 516.35 Preparation of claims for litigation.

(a) General. In preparing a referral for litigation the RJA will

ensure the file contains at least the following:

(1) A litigation report (See Sec. 516.23 of this part) that

demonstrates a factual basis for the claim and a theory of recovery

under applicable state law. (See Fed. R. Civ. P. 11)

(2) Copies of all medical records and bills reflecting the

reasonable value of the medical care furnished to the injured party,

including DA Form 2631-R (Medical Care-Third Party Liability

Notification), and DA Form 3154 (MSA Invoice and Receipt). These

documents should be authenticated as necessary on a DA Form 4.

(3) Copies of all documents necessary to establish the value of

lost or damaged property.

(b) Transmittal letter. The letter of transmittal referring the

claim for litigation should briefly summarize the facts giving rise to

the claim and the collection actions previously taken by the Army and

the injured party.

Assertion of Other Claims

Sec. 516.36 Referral to Litigation Division.

(a) General. The majority of cases filed on behalf of the United

States will fall under this subpart E. All other civil cases which

cannot be resolved administratively or by direct referral to DOJ will

be forwarded through channels to Litigation Division with a litigation

report. (See Sec. 516.23 of this part).

(b) Government contractors. It may be in the Government's best

interest to authorize a Government contractor, whose contract provides

for the reimbursement of necessary legal expenses, to employ private

counsel to initiate legal proceedings against a third party. To obtain

authorization to employ private counsel in such instances the

contractor should follow the procedures in Sec. 516.21(c) of this part.

Sec. 516.37 Proceedings to repossess Government real property or

quarters or to collect delinquent rent.

(a) General. U.S. Attorneys are authorized to accept a Federal

agency's request for the following purposes: to initiate an action to

recover possession of real property from tenants, trespassers, and

others; to enjoin trespasses on Federal property; and, to collect

delinquent rentals or damages for use and occupancy of real property

for amounts less than $200,000.

(b) Procedures. When eviction or an action to collect delinquent

rent is necessary, the SJA or legal adviser will notify General

Litigation Branch, Litigation Division, of the situation. If approved

by Litigation Division, the SJA or legal adviser may ask the U.S.

Attorney to file suit. A copy of the complaint will be sent to

Litigation Division. DOJ can take action to evict the occupants for

violation of the terms of occupancy and collect delinquent rent or

other charges. Once the matter has been referred to the U.S. Attorney,

payments for rent should be sent to the U.S. Attorney. (See AR 210-50,

chap 2.)

Subpart F--Environmental Litigation

Sec. 516.38 Scope.

This subpart contains guidance, policies, and procedures applicable

to all environmental and natural resources civil litigation and

administrative proceedings involving missions and functions of DA, its

major and subordinate commands, all installations presently or

previously managed by DA, and all other sites or issues in which DA has

a substantial interest. In this chapter, ``litigation'' includes civil

administrative proceedings.

Sec. 516.39 Duties and procedures.

(a) Water rights. Environmental Law Division will conduct direct

liaison with DOJ and will represent DA in State and Federal litigation

relating to availability and allocation of surface and ground water and

the establishment and protection of water rights for Army military

installations and activities. This will include litigation in State

general adjudications of water rights under the McCarran Amendment, 43

U.S.C. 666, for Army military installations and activities. Such

litigation relating solely to COE civil works projects or activities

will be handled by attorneys under the technical supervision of the

Chief Counsel, COE. With respect to any general adjudication which

could affect the civil works or real property functions of COE, The

Judge Advocate General, acting through the Chief, Environmental Law

Division, and Chief Counsel, COE, will jointly determine which office

should maintain primary direct liaison with DOJ and will scope and

execute appropriate coordination with each other and with the General

Counsel with respect to that litigation.

(b) Navigable waters. The Chief Counsel, COE, will conduct direct

liaison with DOJ and represent DA in civil litigation involving

activities in or across navigable waters of the United States or other

activities regulated under the Rivers and Harbors Act of 1899, 33

U.S.C. 401 et seq.

conduct direct liaison with DOJ and represent DA in civil litigation

involving The Clean Water Act section 404 (See 33 U.S.C. 1344) permit

authority of COE over the discharge of dredged or fill material into

waters of the United States.

(d) Enforcement. Environmental Law Division will conduct direct

liaison with DOJ and represent DA in all civil litigation involving

citizen or State enforcement of applicable State, Federal and local

requirements respecting the control or abatement of pollution and

involving the management of hazardous wastes, with respect to the

missions and functions of, and Federal facilities owned or controlled

by, DA, except for civil works facilities.

(e) Environmental response.

(1) Except as provided in (a)(2) of this section. Environmental Law

Division will conduct direct liaison with DOJ and represent DA in all

civil litigation seeking declaratory or injunctive relief or involving

claims of Army liability for the costs of response at Federal

facilities currently owned or controlled by DA and at other sites where

the Army is a potentially responsible party.

(2) The Chief Counsel, COE, will conduct direct liaison with DOJ

and represent DA in all civil litigation seeking declaratory or

injunctive relief or involving claims of Army liability for the costs

of response at civil works facilities, at former defense sites or at

other sites where the Army is a potentially responsible party due to

the response actions of the COE or its contractors.

(f) Fish and Wildlife, and Plants. Environmental Law Division will

conduct direct liaison with DOJ and represent DA in civil litigation

involving citizen or State enforcement of applicable State, Federal,

and local laws governing conservation of plant, fish, and wildlife

resources at Federal facilities owned or controlled by DA, except that

such litigation relating solely to the real estate, civil works,

navigation and Clean Water Act section 404 (See 33 U.S.C. 1344) permit

functions and activities of the COE will be handled by attorneys under

the technical supervision of the Chief Counsel, COE.

(g) Toxic torts.

(1) Except as otherwise provided in this part, Environmental Law

Division will conduct direct liaison with DOJ and represent DA in all

civil litigation involving claims of tort liability for exposure to

environmental contamination emanating from Federal facilities owned or

controlled by DA.

(2) Litigation Division will conduct liaison with DOJ and represent

DA in civil litigation involving claims of tort liability for singular

and discrete incidents of exposure to environmental contamination

emanating from any Federal facility owned or controlled by DA.

(3) The Chief Counsel, COE, will conduct direct liaison with DOJ

and will represent DA in civil litigation involving claims of tort

liability for exposure to environmental contamination (including

singular and discrete incidents) emanating from any civil works

activities under the jurisdiction of the Secretary of the Army.

(4) The Chief Counsel, COE, and Chief, Environmental Law Division,

will confer and jointly determine which office will conduct direct

liaison with DOJ and represent DA in civil litigation involving all

other claims of toxic tort liability.

Subpart G--Release of Information and Appearance of Witnesses Scope

Sec. 516.40 General.

(a) Introduction. This subpart implements DOD Directive 5405.2 (See

Appendix C to this part and 32 CFR part 97). It governs the release of

official information and the appearance of present and former DA

personnel as witnesses in response to requests for interviews, notices

of depositions, subpoenas, and other requests or orders related to

judicial or quasi-judicial proceedings. Requests for records, if not in

the nature of legal process, should be processed under AR 25-55 (The

Department of the Army Freedom of Information Act Program) or AR 340-21

(The Army Privacy Program). This subpart pertains to any request for

witnesses, documents, or information for all types of litigation,

including requests by private litigants, requests by State or U.S.

attorneys, requests by foreign officials or tribunals, subpoenas for

records or testimony, notices of depositions, interview requests, civil

cases, criminal proceedings, private litigation, or litigation in which

the United States has an interest.

(b) Definitions. (See Appendix F to this part).

Sec. 516.41 Policy.

(a) General Rule. Except as authorized by this subpart, present or

former DA personnel will not disclose official information (See

Appendix F--Glossary) in response to subpoenas, court orders, or

requests.

(b) Exception. Present or former DA personnel may disclose official

information if they obtain the written approval of the appropriate SJA,

legal adviser, or Litigation Division.

personnel receive a subpoena, court order, request for attendance at a

judicial or quasi-judicial proceeding, or request for an interview

related to actual or potential litigation, and it appears the subpoena,

order, or request seeks disclosures described in a above, the

individual should immediately advise the appropriate SJA or legal

adviser. If the SJA or legal adviser cannot informally satisfy the

subpoena, order, or request in accordance with Secs. 516.43 through

516.50 of this subpart, he should consult with Litigation Division.

(d) Requesters' responsibilities. Individuals seeking official

information must submit, at least 14 days before the desired date of

production, a specific written request setting forth the nature and

relevance of the official information sought. (Requesters can be

referred to this Subpart G). Subject to Sec. 516.47(a), present and

former DA personnel may only produce, disclose, release, comment upon,

or testify concerning those matters specified in writing and properly

approved by the SJA, legal adviser, or Litigation Division. (See United

States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).

(e) Litigation in which the United States has an interest. If a

subpoena, order, or request relates to litigation in which the United

States has an interest and for which litigation responsibility has not

been delegated, the SJA or legal adviser will coordinate with

Litigation Division under Sec. 516.42.

(f) Motions to stay or quash subpoenas. A subpoena should never be

ignored, and an SJA or legal adviser should seek assistance from

Litigation Division or the U.S. Attorney's office whenever necessary.

If a response to a subpoena or order is required before a release

determination can be made or before Litigation Division or the U.S.

Attorney can be contacted, the SJA or legal adviser will do the

following:

(1) Furnish the court or tribunal a copy of this regulation (32 CFR

part 516, Subpart G) and applicable case law (See United States ex.

rel. Touhy v. Ragen, 340 U.S. 462 (1951));

(2) Inform the court or tribunal that the requesting individual has

not complied with this Chapter, as set out in 32 CFR 97 & 516, or that

the subpoena or order is being reviewed;

(3) Seek to stay the subpoena or order pending the requestor's

compliance with this chapter or final determination by Litigation

Division; and,

(4) If the court or other tribunal declines to quash or stay the

subpoena or order, inform Litigation Division immediately so a decision

can be made whether to challenge the subpoena or order. If Litigation

Division decides not to challenge the subpoena or order, the affected

personnel will comply with the subpoena or order. If Litigation

Division decides to challenge the subpoena or order, it will direct the

affected personnel to respectfully decline to comply with the subpoena

or order. (See United States ex. rel. Touhy v. Ragen, 340 U.S. 462

(1951)).

(g) Classified or sensitive information. Only Litigation Division

may authorize the release of official information or appearance of DA

personnel as witnesses in litigation involving terrorism, espionage,

nuclear weapons, or intelligence sources and methods.

(h) Requests for Inspector General records or testimony. IG

records, and information obtained through performance of IG duties, are

official information under the exclusive control of the Secretary of

the Army. (See AR 20-l, Chapter 3.) IG records frequently contain

sensitive official information that may be classified or obtained under

guarantees of confidentiality. When justification exists, DA attorneys

will seek court protection from disclosure of IG records and

information. No DA personnel will release IG records or disclose

information obtained through performance of IG duties without the

approval of The Secretary of the Army, The Inspector General, TIG Legal

Advisor, or Chief, Litigation Division. When IG personnel receive a

subpoena, court order, request for attendance at a judicial or quasi-

judicial proceeding, or a request for an interview which the IG

reasonably believes is related to actual or potential litigation

concerning IG records or related information, they should immediately

notify the Inspector General Legal Adviser or the Chief, Litigation

Division. IG personnel will follow the guidance of this subpart

concerning actions to be taken regarding disclosure and testimony.

Sec. 516.42 Reference to HQDA.

(a) General. If the SJA or legal adviser is unable to resolve the

matter, it will be referred for approval or action by Litigation

Division under this chapter, by the most expeditious means, to General

Litigation Branch, Litigation Division, with the following exceptions:

(1) Those involving a case assigned to another branch of Litigation

Division will be submitted to that branch (Appendix B to this part).

(2) Those involving affirmative litigation (for example, medical

care recovery or Army property damage or loss cases) under subpart E

will be submitted to Tort Branch.

(3) Those involving patents, copyrights, privately developed

technical information, or trademarks will be submitted to Intellectual

Property Law Division.

(4) Those involving taxation will be submitted to Contract Law

Division.

(5) Those involving communication, transportation, or utility

service proceedings will be submitted to the Regulatory Law Office.

(6) Those involving environmental matters will be submitted to the

Environmental Law Division.

(7) Those involving contract appeals cases before the ASBCA will be

submitted to the Contract Appeals Division.

(8) Those involving procurement fraud, including Qui Tam cases,

will be submitted to the Procurement Fraud Division.

(b) Information to be submitted. When referring matters pursuant to

paragraph (a) of this section, the following data should be provided:

(1) Parties (named or prospective) to the proceeding, their

attorneys, and case number, where appropriate.

(2) Party making the request (if a subpoena, indicate moving party)

and his attorney.

(3) Name of tribunal in which the proceeding is pending.

(4) Nature of the proceeding.

(5) Date of receipt of request or date and place of service of

subpoena.

(6) Name, grade, position, and organization of person receiving

request or served with subpoena.

(7) Date, time, and place designated in request or subpoena for

production of information or appearance of witness.

(8) Nature of information sought or document requested, and place

where document is maintained.

(9) A copy of each document requested. Contact the appropriate

office at HQDA if this would be burdensome and unnecessary to a

decision whether to release, redact, or withhold a particular document.

(10) Name of requested witness, expected testimony, requested

appearance time and date, and whether witness is reasonably available.

(11) Analysis of the problem with recommendations.

Release of Records in Connection With Litigation

Sec. 516.43 Release of Army and other agency records.

(a) Preservation of originals. To preserve the integrity of DA

records, DA personnel will submit properly authenticated copies rather

than originals of documents or records for use in legal proceedings,

unless directed otherwise by Litigation Division. (See 28 U.S.C. 1733.)

(b) Authentication of copies. Copies of DA records approved for

release can be authenticated for introduction in evidence by use of DA

Form 4. (See Sec. 516.25 for instructions.)

(1) Records maintained in U.S. Army Engineer Districts and

Divisions will be forwarded to HQDA(CECC-K), WASH DC 20314-1000.

(2) All other records will be forwarded to the appropriate office

at HQDA (See Sec. 516.42).

charges for searching, copying, and certifying Army records for release

in response to litigation-related requests.

(d) Release of records of other agencies. Normally an individual

requesting records originating in agencies outside DA (that is, FBI

reports, local police reports, civilian hospital records) that are also

included in Army records should be advised to direct his inquiry to the

originating agency.

Sec. 516.44 Determination of release authorization.

(a) Policy. DA policy is to make official information reasonably

available for use in Federal and state courts and by other governmental

bodies unless the information is classified, privileged, or otherwise

protected from public disclosure.

(b) Releasability factors. In deciding whether to authorize release

of official information, the deciding official should consider the

following:

(1) Has the requester complied with DA policy governing the release

of official documents in Sec. 516.41(d) of this part.

(2) Is the request unduly burdensome or otherwise inappropriate

under the applicable court rules?

(3) Is the disclosure appropriate under the rules of procedure

governing the matter in which the request arose?

(4) Would the disclosure violate a statute, executive order,

regulation, or directive?

(5) Is the disclosure appropriate under the relevant substantive

law concerning privilege?

(6) Would the disclosure reveal information properly classified

pursuant to the DOD Information Security Program under AR 380-5,

unclassified technical data withheld from public release pursuant to 32

CFR Sec. 250, or other matters exempt from unrestricted disclosure?

(7) Would disclosure interfere with ongoing enforcement

proceedings, compromise constitutional rights, reveal the identity of

an intelligence source or confidential informant, disclose trade

secrets or confidential commercial or financial information, or,

otherwise be inappropriate under the circumstances?

(8) Would the disclosure violate any person's expectation of

confidentiality or privacy?

Sec. 516.45 Records determined to be releasable.

If the deciding official, after considering the factors set forth

in Sec. 536.44, determines that all or part of requested official

records are releasable, copies of the records should be furnished to

the requester.

Sec. 516.46 Records determined not to be releasable.

(a) General. If the deciding official, after considering the

factors in Sec. 516.44, determines that all or part of requested

official records should not be released, he will promptly communicate

directly with the attorney or individual who caused the issuance of the

subpoena, order, or request and seek to resolve the matter informally.

If the subpoena or order is invalid, he should explain the basis of the

invalidity. The deciding official should also explain why the records

requested are privileged from release. The deciding official should

attempt to obtain the agreement of the requester to withdraw the

subpoena, order, or request or to modify the subpoena, order, or

request so that it pertains only to records which may be released. (See

Figure G-1, Appendix G, of this part.)

(b) Information protected by the Privacy Act.

(1) A subpoena duces tecum or other legal process signed by an

attorney or clerk of court for records protected by the Privacy Act, 5

U.S.C. 552a, does not justify the release of the protected records. The

deciding official should explain to the requester that the Privacy Act

precludes disclosure of records in a system of records without the

written consent of the subject of the records or ``pursuant to the

order of a court of competent jurisdiction.'' (See 5 U.S.C.

552a(b)(11)). An ``order of the court'' for the purpose of subsection 5

U.S.C. 552a(b)(11) is an order or writ requiring the production of the

records, signed by a judge or magistrate.

(2) Unclassified records otherwise privileged from release under 5

U.S.C. 552a may be released to the court under either of the following

conditions:

(i) The subpoena is accompanied by an order signed by a judge or

magistrate, or such order is separately served, that orders the person

to whom the records pertain to release the specific records, or that

orders copies of the records be delivered to the clerk of court, and

indicates that the court has determined the materiality of the records

and the nonavailability of a claim of privilege.

(ii) The clerk of the court is empowered by local statute or

practice to receive the records under seal subject to request that they

be withheld from the parties until the court determines whether the

records are material to the issues and until any question of privilege

is resolved.

(iii) Subpoenas for alcohol abuse or drug abuse treatment records

must be processed under 42 U.S.C. 290dd-3 and 290ee-3, and Public

Health Service regulations published at 42 CFR 2.1--2.67.

(iv) Upon request, SJAs and legal advisers may furnish to the

attorney for the injured party or the tortfeasor's attorney or

insurance company a copy of the narrative summary of medical care that

relates to a claim under Subpart E of this part. If additional medical

records are requested, only those that directly pertain to the pending

action will be furnished. If furnishing copies of medical records would

prejudice the cause of action, the matter will be reported to

Litigation Division.

not able to resolve a request for Army records informally, he should

contact Litigation Division.

(1) Litigation Division may respond to subpoenas or orders for

records privileged from release by informing the local U.S. Attorney

about the subpoena and requesting that office file a motion to quash

the subpoena or a motion for a protective order. The records privileged

from release should be retained by the custodian pending the court's

ruling upon the government's motion.

(2) When a motion to quash or for a protective order is not filed,

or the motion is unsuccessful, and the appropriate DA official has

determined that no further efforts will be made to protect the records,

copies of the records (authenticated if necessary) will be submitted to

the court (or to the clerk of court) in response to the subpoena or

order.

(d) Classified and privileged materials. Requests from DOJ, U.S.

Attorneys, or attorneys for other governmental entities for records

which are classified or otherwise privileged from release will be

referred to Litigation Division. (See Sec. 516.41(g).

DA Personnel as Witnesses in Private Litigation

Sec. 516.47 Response to subpoenas, orders, or requests for witnesses.

(a) Policy. The involvement of present or former DA personnel in

private litigation is solely a personal matter between the witness and

the requesting party, unless one or more of the following conditions

apply:

(1) The testimony involves official information. (See Appendix F--

Glossary to this part).

(2) The witness is to testify as an expert.

(3) The absence of the witness from duty will seriously interfere

with the accomplishment of a military mission.

(b) Former DA personnel. Former DA personnel may freely respond to

requests for interviews and subpoenas except in instances involving

official information (paragraph (a)(1) of this section) or concerning

expert testimony prohibited by Sec. 516.49. In those instances, the

subject of the request or subpoena should take the action specified in

Secs. 516.41(c) and 516.42.

requests for interviews and subpoenas for testimony in private

litigation through their supervisor to the appropriate SJA or legal

adviser.

(d) Discretion to testify. Any individual not wishing to grant an

interview or to testify concerning private litigation may seek the

advice of an Army attorney concerning the consequences, if any, of

refusal. Any individual not authorized to consult with Army counsel

should consult with private counsel, at no expense to the government.

Sec. 516.48 Official information.

(a) In instances involving Sec. 516.47(a)(1), the matter will be

referred to the SJA or legal adviser serving the organization of the

individual whose testimony is requested, or to HQDA pursuant to

Sec. 516.47(a). The deciding official will determine whether to release

the information sought under the principles established in Sec. 516.44.

If funding by the United States is requested, see Sec. 516.55(d).

(b) If the deciding official determines that the information may be

released, the individual will be permitted to be interviewed, deposed,

or to appear as a witness in court provided such interview or

appearance is consistent with the requirements of Secs. 516.49 and

516.50. (See, for example, Figure G-2, Appendix G, to this part). A JA

or DA civilian attorney should be present during any interview or

testimony to act as legal representative of the Army. If a question

seeks information not previously authorized for release, the legal

representative will advise the witness not to answer. If necessary to

avoid release of the information, the legal representative will advise

the witness to terminate the interview or deposition, or in the case of

testimony in court, advise the judge that DOD directives and Army

regulations preclude the witness from answering without HQDA approval.

Every effort should be made, however, to substitute releasable

information and to continue the interview or testimony.

Sec. 516.49 Expert witnesses.

(a) General rule. Present DA personnel will not provide, with or

without compensation, opinion or expert testimony either in private

litigation or in litigation in which the United States has an interest

for a party other than the United States. Former DA personnel will not

provide, with or without compensation, opinion or expert testimony

concerning official information, subjects, or activities either in

private litigation or in litigation in which the United States has an

interest for a party other than the United States. (See Figure G-3,

Appendix G of this part). An SJA or legal adviser is authorized to deny

a request for expert testimony, which decision may be appealed to

Litigation Division.

(b) Exception to the general prohibition. If a requester can show

exceptional need or unique circumstances, and the anticipated testimony

will not be adverse to the interests of the United States, Litigation

Division may grant special written authorization for present or former

DA personnel to testify as expert or opinion witnesses at no expense to

the United States. In no event may present or former DA personnel

furnish expert or opinion testimony in a case in which the United

States has an interest for a party whose interests are adverse to the

interests of the United States.

department or other qualified specialists may testify in private

litigation with the following limitations (See Figure G-4, Appendix G,

of this part):

(1) The litigation involves patients they have treated,

investigations they have made, laboratory tests they have conducted, or

other actions taken in the regular course of their duties.

(2) They limit their testimony to factual matters such as the

following: their observations of the patient or other operative facts;

the treatment prescribed or corrective action taken; course of recovery

or steps required for repair of damage suffered; and, contemplated

future treatment.

(3) Their testimony may not extend to expert or opinion testimony,

to hypothetical questions, or to a prognosis.

(d) Court-ordered expert or opinion testimony. If a court or other

appropriate authority orders expert or opinion testimony, the witness

will immediately notify Litigation Division. If Litigation Division

determines it will not challenge the subpoena or order, the witness

will comply with the subpoena or order. If directed by Litigation

Division, however, the witness will respectfully decline to comply with

the subpoena or order. (See United States ex. rel. Touhy v. Ragen, 340

U.S. 462 (1951)).

(e) Expert witness fees. All fees tendered to present DA personnel

as an expert or opinion witness, to the extent they exceed actual

travel, meals, and lodging expenses of the witness, will be remitted to

the Treasurer of the United States.

Sec. 516.50 Interference with mission.

If the absence of a witness from duty will seriously interfere with

the accomplishment of a military mission, the SJA or legal adviser will

advise the requesting party and attempt to make alternative

arrangements. If these efforts fail, the SJA or legal adviser will

refer the matter to Litigation Division.

Litigation in Which the United States Has an Interest

Sec. 516.51 Response to subpoenas, orders, or requests for witnesses.

(a) Referral to a deciding official. Requests, subpoenas, or orders

for official information, interviews or testimony of present or former

DA personnel in litigation or potential litigation in which the United

States has an interest, including requests from DOJ, will be resolved

by the SJA or legal adviser pursuant to the principles of this subpart.

Litigation Division will be consulted on issues that cannot be resolved

by the SJA or legal adviser.

(b) Reassignment of witnesses. When requested by the U.S. Attorney,

the SJA or legal adviser will ensure that no witnesses are reassigned

from the judicial district without advising the DOJ attorney. If a

witness is vital to the government's case and trial is imminent, the

SJA or legal adviser should make informal arrangements to retain the

witness in the command until trial. If this is not feasible, or if a

satisfactory arrangement cannot be reached with the DOJ attorney, the

SJA or legal adviser should notify Litigation Division.

Sec. 516.52 Expert witnesses.

Requests for present or former DA personnel as expert or opinion

witnesses from DOJ or other attorneys representing the United States

will be referred to Litigation Division unless the request involves a

matter that has been delegated by Litigation Division to an SJA or

legal adviser. In no event, may present or former DA personnel furnish

expert or opinion testimony in a case in which the United States has an

interest for a party whose interests are adverse to the interests of

the United States.

Sec. 516.53 News media and other inquiries.

News media inquiries regarding litigation or potential litigation

will be referred to the appropriate public affairs office. DA personnel

will not comment on any matter presently or potentially in litigation

without proper clearance. Local public affairs officers will refer

press inquiries to HQDA (SAPA), WASH DC 20310-1500, with appropriate

recommendations for review and approval by the Office of the Chief of

Public Affairs. All releases of information regarding actual or

potential litigation will be coordinated with Litigation Division prior

to release.

Status, Travel, and Expenses of Witnesses

Sec. 516.54 Witnesses for the United States.

(a) Status of witness. A military member authorized to appear as a

witness for the United States, including those authorized to appear

under Sec. 516.55(d), will be placed on temporary duty. If USAR or NG

personnel are requested as witnesses for the United States, and if

their testimony arises from their active duty service, they should be

placed on active duty to testify. The status of a civilian employee

will be determined under Federal Personnel Manual 630, subchapter 10.

DA personnel who appear as necessary witnesses for a party asserting

the government's claim for medical care expenses are witnesses for the

United States.

(b) Travel arrangements. Travel arrangements for witnesses for the

United States normally are made by DOJ through Litigation Division for

other than local travel. Litigation Division will issue instructions

for this travel, including fund citation, to the appropriate commander.

A U.S. Attorney, or an attorney asserting the government's medical care

claim under Subpart E, may make arrangements for local travel through

the SJA or legal adviser for attendance of a witness who is stationed

at an installation within the same judicial district, or not more than

100 miles from the place where testifying. Other requests, including

those under Sec. 516.55(d), will be referred to Litigation Division.

The instructions from Litigation Division, or the request from the U.S.

Attorney or the attorney asserting the government's claim, will serve

as a basis for the issuance of appropriate travel orders by the local

commander.

supervisor should ensure the witness has sufficient funds to defray

expenses. The SJA or legal adviser will provide assistance.

(1) Where local travel is performed at the request of a U.S.

Attorney and the testimony does not involve information acquired in the

performance of duties, transportation arrangements and any per diem

expenses are the responsibility of the U.S. Attorney.

(2) An attorney asserting the government's medical care or property

claim may be required to advance local travel expense money to the

witness requested and to include these in recoverable costs where the

government's claim is not large enough to justify expenditures of

government travel funds.

(3) Other local travel and per diem expense for cases involving

Army activities or claims are proper expenses of the command issuing

the orders.

(4) Litigation Division will furnish travel expense and per diem

funds for other than local travel and will receive reimbursement from

DOJ or other government agencies as appropriate.

Sec. 516.55 Witnesses for a state or private litigant.

(a) Status of witness. If authorized to appear as a witness for a

state or private litigant, and the testimony to be given relates to

information obtained in the performance of official duties, a military

member will attend in a permissive TDY status. If authorized to appear

as a witness, but the testimony does not relate to information obtained

in the performance of official duties, a military member may be granted

a pass or permissive TDY under AR 630-5, or be required to take

ordinary leave. The status of a civilian employee will be determined

under 5 CFR Chapter I.

(b) Travel arrangements. The requesting party or state agency will

make all travel arrangements for attendance of DA personnel authorized

to appear as witnesses for a state or private litigant. The local

commander may issue appropriate orders when necessary.

and lodging expenses of the witness, other than normal allowances for

subsistence pursuant to the DOD Military Pay and Allowances

Entitlements Manual. These expenses are solely a matter between the

witness and the party seeking his appearance. Witnesses ordinarily

should be advised to require advance payment of such expenses. Military

personnel authorized to appear in a pass or permissive TDY status are

not entitled to receive witness attendance fees, but may accept travel,

meals, and lodging expense money from the requesting litigant. All

witness fees tendered the military member, to the extent they exceed

such actual expenses of the member, will be remitted to the Treasurer

of the United States. A civilian employee authorized to appear in his

or her official capacity will accept the authorized witness fees, in

addition to the allowance for travel and subsistence, and make

disposition of the witness fees as instructed by his or her personnel

office.

(d) Funding by the United States. Requests for DA personnel to

appear at government expense as witnesses in state or local proceedings

for a party other than the United States, including cases involving

domestic violence or child abuse, will be referred to Litigation

Division. Litigation Division may authorize travel and per diem

expenses under Sec. 516.54 when the case is one in which the United

States has a significant interest.

Sec. 516.56 Witnesses before foreign tribunals.

(a) Referral to the SJA. Requests or subpoenas from a foreign

government or tribunal for present DA personnel stationed or employed

within that country to be interviewed or to appear as witnesses will be

forwarded to the SJA of the command exercising general court-martial

jurisdiction over the unit to which the individual is assigned,

attached, or employed. The SJA will determine the following:

(1) Whether a consideration listed in Sec. 516.47(a)(1) through

(a)(3) applies.

(2) Whether the information requested is releasable under the

principles established in Sec. 516.43 through Sec. 516.46.

(3) Whether the approval of the American Embassy should be obtained

because the person is attached to the Embassy staff or a question of

diplomatic immunity may be involved.

(b) United States has an interest in the litigation. If the SJA

determines that the United States has an interest in the litigation,

the commander may authorize the interview or order the individual's

attendance in a temporary duty status. The United States will be deemed

to have an interest in the litigation if it is bound by treaty or other

international agreement to ensure the attendance of such personnel.

determines that the United States does not have an interest in the

litigation, the commander may authorize the interview or the appearance

of the witness under the principles established in Sec. 516.47 through

Sec. 516.50.

(d) Witnesses located outside the requester's country. If the

requested witness is stationed in a country other than the requester's,

the matter will be referred to Litigation Division.

Subpart H--Remedies in Procurement Fraud and Corruption

Sec. 516.57 Purpose

This subpart delineates the policies, procedures, and

responsibilities for reporting and resolving allegations of procurement

fraud or irregularities (PFI) within DA. It implements DOD Directive

7050.5. (See Appendix D to this part.)

Sec. 516.58 Policies

(a) Procurement fraud and irregularities will be promptly and

thoroughly addressed whenever encountered. Reports will be initiated in

a timely manner and will be supplemented as appropriate.

(b) Investigations will be monitored to see that interim corrective

action is taken and that final action is taken as expeditiously as

possible.

(PFD), U.S. Army Legal Services Agency, as the single centralized

organization within the Army to coordinate and monitor criminal, civil,

contractual, and administrative remedies in significant cases of fraud

or corruption relating to Army procurement.

(d) The key elements of the Army's procurement fraud program

follow: centralized policy making and program direction; fraud remedies

coordination; decentralized responsibility for operational matters,

such as reporting and remedial action; continuous case monitorship by

PFD from the initial report until final disposition; and, command-wide

fraud awareness training.

(e) Remedies for PFI will be pursued in a timely manner and

properly coordinated with other agencies. Every effort will be made to

support criminal investigation and prosecution of fraudulent activity.

(f) A specific remedies plan will be formulated for each

significant case of fraud or corruption involving procurement.

(g) Coordination on the status and disposition of cases will be

maintained between PFD, OTJAG, PFI Coordinators at MACOMs, and

Procurement Fraud Advisers at subordinate commands. Coordination of

procurement and personnel actions will be accomplished with

investigative agencies as required by those agencies.

(h) Training which relates to fraud and corruption in the

procurement process is a significant element of this program.

Sec. 516.59 Duties and procedures.

(a) TJAG has overall responsibility for the coordination of

remedies in procurement fraud and corruption within the Army. This

responsibility has been delegated to PFD. Functions of PFD will include

the following:

(1) Serving as the single centralized organization in the Army to

monitor the status of, and ensure the coordination of, criminal, civil,

contractual, and administrative remedies for each significant case of

fraud or corruption.

(2) Receiving reports of procurement fraud and corruption from any

source including, but not limited to the following: DOD criminal

investigative organizations; audit agencies; contracting officers;

inspectors general of the executive branch; correspondence from the

public; and, commanders. This provision does not repeal any other

reporting requirement but establishes PFD as a recipient of PFI

information at the earliest possible time.

(3) Establishing a monitoring system within OTJAG for all cases of

fraud and corruption that relate to Army procurement.

(4) Discussing regularly with the U.S. Army Criminal Investigation

Command (USACIDC) or the assigned DOD criminal investigative

organization the current status of significant fraud or corruption

cases and their coordination with prosecutive authorities.

(5) Ensuring that all criminal, civil, contractual, and

administrative remedies are considered in each significant fraud or

corruption case and that timely and applicable remedies are undertaken

by commanders, contracting officers, and suspension and debarment

authorities. For example, consideration of suspension or debarment of a

contractor or individual should normally be initiated within 30 days of

indictment or conviction.

(6) Coordinating, as appropriate, with other DOD components

affected by a significant fraud or corruption case being monitored by

the Army.

(7) Developing, with the responsible DOD investigative

organization, Procurement Fraud Coordinators and Advisers, and other

involved agencies, a specific comprehensive remedies plan for each

significant fraud or corruption case.

(8) Coordinating remedies with DOJ. In the case of ongoing criminal

investigations, coordinate remedies through, or with the prior

knowledge of, the DOD criminal investigative organization responsible

for the case.

(9) In significant fraud or corruption cases, identifying and

documenting any known adverse impact on a DOD mission, and including

the information in any remedies plan.

(10) Providing the appropriate DOD criminal investigative

organization with information concerning final remedies as a result of

an investigation by that organization.

(11) Receiving notifications from criminal investigative agencies

concerning substituted, defective, and counterfeit hardware in which a

serious hazard to health, safety or operational readiness is indicated;

ensuring that appropriate safety, procurement and program officials are

informed in accordance with enclosure 3 of DOD Directive 7050.5. PFD

will specifically ensure that contract reviews (DD 350 reports) and

adverse impact statements (See Sec. 516.64(c)(2) are prepared, and that

such information is used to determine if further inquiry is warranted

to prevent reoccurrence and to detect other possible fraud. Impact

statements will not be released to prosecutive agencies until reviewed

by PFD. When appropriate, PFD will coordinate with other DOD agencies

to establish a lead agency for victim impact statements in multi-DOD

agency cases.

(b) The Commanding General, USACIDC, will take the following

actions:

(1) Notify PFD of any investigations involving fraud or corruption

related to procurement activities.

(2) Notify other DOD component criminal investigative organizations

when investigations involving fraud or corruption affect that

component. This includes evidence of fraud by a contractor,

subcontractor, or employee of either, on current or past contracts

with, or affecting, that component.

(3) Notify the Defense Investigative Service of any investigations

that develop evidence which affects DOD cleared industrial facilities

or personnel.

(4) Determine the effect on any ongoing investigations or

prosecutions of any criminal, civil, contractual, or administrative

actions being considered by a centralized organization and advise of

any adverse impact.

(5) Promptly provide commanders, contracting officers, Procurement

Fraud Advisers, and suspension and debarment authorities, when needed

to allow consideration of applicable remedies, any court records,

documents, or other evidence of fraud or corruption from ongoing or

completed criminal investigations. In cases of indictment or conviction

of a contractor or individual, the information will be provided in time

for initiation, if appropriate, of suspension or debarment action

within 30 days of the indictment or conviction.

(6) Provide prosecutive authorities and centralized organizations

with timely information on the adverse impact on a DOD mission of fraud

or corruption that relates to DOD procurement activities. This

information will be obtained from individuals such as the head of the

contracting agency, appropriate commanders, and staff agencies. Some

examples of adverse impact on a DOD mission are endangerment of

personnel or property, monetary loss, compromise of the procurement

process, or reduction or loss of mission readiness.

(7) Discuss regularly with Procurement Fraud Advisers the status of

significant investigations of fraud or corruption and their

coordination with prosecutive authorities and provide documents and

reports resulting from the investigations.

procurement-related training (such as The Judge Advocate General's

School, the U.S. Military Police School, and the U.S. Army Logistics

Management Center) will ensure the following:

(1) All procurement and procurement-related training includes a

period of instruction on fraud and corruption in the procurement

process. The length of the period of instruction will be appropriate to

the duration and nature of the training.

(2) Training materials are developed to support that training.

(3) Training materials developed will be sent to MACOM PFI

Coordinators.

(d) MACOM commanders and heads of contracting activities will

ensure the following:

(1) Substantial indications of fraud or corruption relating to Army

contracts or Army administered contracts are reported promptly to the

supporting USACIDC element and the Procurement Fraud Division.

(2) Information provided includes reports by contracting officers

under DFARS 209.406-3.

Sec. 516.60 Procurement fraud and irregularities programs at MACOMs.

(a) Command counsel and SJAs at MACOMs will develop a program and

appoint an attorney as PFI Coordinator for their command. Chief counsel

and SJAs at commands with procurement advisory responsibility will

appoint an attorney as a Procurement Fraud Adviser (PFA) to manage the

PFI program at their installations as well.

(b) Provision may be made for activities not having sufficient

attorney assets to obtain assistance from nearby installations that

have a PFA.

channels to the PFI coordinator for the affected MACOM.

(d) Command counsel, chief counsel, and SJAs will exercise

supervisory authority to ensure effective operation of the fraud

program and coordination of remedies within their organizations.

(e) The MACOM PFI Coordinator will have overall responsibility for

the design and implementation of the MACOM's procurement fraud program.

(f) PFAs and PFI Coordinators will coordinate with the appropriate

local CID or Defense Criminal Investigative Service (DCIS) activity to

assure the prompt notification and coordination of all Procurement

Fraud cases.

Sec. 516.61 Reporting requirements.

(a) Typical fraud indicators during the procurement cycle are

listed in Figure D-1, Appendix G, to this part. The mere presence of

one or more of these indicators does not, by itself, require reporting

under paragraph b of this section. Reports should be submitted if there

is a reasonable suspicion of procurement fraud or irregularity or the

procuring agency refers the matter for investigation.

(b) ``Procurement Flash Reports'' will be transmitted by FAX

directly to PFD whenever a PFI Coordinator or PFA receives notice of a

PFI involving the Army. To facilitate filing, a separate sheet should

be used for each case reported. These reports will provide a succinct

summary of the following available information:

(1) Name and address of contractor.

(2) Known subsidiaries of parent firms.

(3) Contracts involved in potential fraud.

(4) Nature of potential fraud.

(5) Summary of pertinent facts.

(6) Possible damages.

(7) Investigative agencies involved.

(8) Local PFAs (name and phone numbers).

Any of the above categories that cannot be completed will be

annotated as ``unknown at present.''

provisions of DFARS 209.406-3 (48 CFR 209.406-3) will be followed. That

paragraph provides the basic content and format for PFI reports.

(d) All personnel will cooperate to ensure that investigations and

prosecutions of procurement fraud are completed in a timely and

thorough manner. Requests for assistance from federal prosecutors

should be processed through the local PFA whenever possible. Requests

for federal investigators will be processed through the supporting

USACIDC and the PFA will be notified. When the conduct of criminal

investigations and prosecutions conflict with the progress of

procurements, reasonable deference will be given to criminal

investigators and prosecutors whenever possible. Any serious conflict

that cannot be resolved at a local level will be immediately reported

to the PFI Coordinator or PFD for action.

(e) PFI Coordinators and PFAs may request access to information

obtained during criminal investigations that is not protected by Fed.

R. Crim. P. 6(e) and use this information to assist them in taking

appropriate administrative, contractual, and civil remedies. Requests

for this information should be made directly to the appropriate federal

investigative agency. The investigative organization may withhold

requested information if release would compromise an investigation.

Difficulties in obtaining information which cannot be resolved locally

will be referred to PFD for appropriate action.

(f) USACIDC will notify, in writing, local PFAs as well as PFD

within 30 days, of initiation of a significant investigation of fraud

or corruption related to Army procurement activities. Such notification

will include the following:

(1) Case title.

(2) USACIDC Report of Investigation number.

(3) Responsible investigative agency or agencies.

(4) Office of primary responsibility.

(5) Date opened.

(6) Summary of facts.

(7) Suspected offense.

(g) The transmission of the information in f above may be delayed

if the Commanding General, USACIDC, or the head of another DOD criminal

investigation organization determines the transmission would compromise

the success of any case or its prosecution. The prosecutive authorities

dealing with the case will be consulted, when appropriate, in making

such determinations.

(h) USACIDC will obtain the following information at the earliest

possible point in an investigation of fraud or corruption that relates

to DOD procurement activities, whenever possible without reliance on

grand jury subpoenas:

(1) The individuals suspected to be responsible.

(2) The suspected firm's organizational structure.

(3) The firm's financial and contract history.

(4) The firm's organizational documents and records.

(5) Statements of witnesses.

(6) Monetary loss to the government.

(7) Other relevant information.

This information will be provided to PFD or other cognizant DOD

centralized organization.

(i) PFD will provide written notification to the Defense

Investigative Service of all suspension or debarment actions taken by

the Army.

Sec. 516.62 PFD and HQ USACIDC coordination.

PFD and HQ USACIDC will coordinate as follows:

(a) Discuss the status of significant procurement fraud or

corruption investigations being conducted by USACIDC and possible

remedies. These discussions should take place on a regular basis.

(b) Discuss the coordination of possible criminal, civil,

contractual, or administrative remedies with prosecutive authorities.

organizations and will coordinate remedies with those centralized

organizations affected by a significant investigation of fraud or

corruption that relates to DOD procurement activities.

(d) Ascertain the effect on any ongoing investigation of the

initiation of civil, contractual, or administrative remedies as

follows:

(1) PFD will maintain liaison with USACIDC and other DOD criminal

investigative organizations in order to determine the advisability of

initiating any civil, contractual, or administrative actions.

(2) USACIDC will advise PFD of any adverse effect on an

investigation or prosecution by the initiation of civil, contractual,

or administrative actions.

Sec. 516.63 Coordination with DOJ.

(a) PFD will establish and maintain liaison with DOJ and the

Defense Procurement Fraud Unit on significant fraud and corruption

cases to accomplish the following:

(1) Monitor criminal prosecutions.

(2) Initiate litigation for civil recovery.

(3) Coordinate administrative or contractual actions while

criminal or civil proceedings are pending.

(4) Coordinate settlement agreements or proposed settlements of

criminal, civil, and administrative actions.

(5) Respond to DOJ requests for information and assistance.

(b) In cases where there is an ongoing criminal investigation,

coordination with DOJ by any member of the Army normally will be

accomplished by or through USACIDC or the cognizant DOD criminal

investigative organization, or with the investigative organization's

advance knowledge. This does not apply to the routine exchange of

information between government attorneys in the course of civil

litigation or the routine referral of cases to DOJ for civil recovery.

with a U.S. Attorney's office or DOJ, whether initiated by the Army

attorney or not, will be reported to PFD. Activity after the initial

contact will only be reported to PFD when the Army attorney feels there

has been a significant event in the case. If the Army attorney is not a

PFI Coordinator or a PFA, the matter should be referred to one of these

two attorneys as soon as possible. Routine exchanges between Army

attorneys and U.S. Attorney's offices or DOJ do not need to be brought

to the attention of PFD.

Sec. 516.64 Comprehensive remedies plan.

(a) A specific, comprehensive remedies plan will be developed in

each significant investigation involving fraud or corruption that

relates to Army procurement activities. When possible, these plans

should be forwarded with the DFARS 209.406-3 reports. In no case,

however, should the report be delayed an appreciable time pending

completion of the plan. The format for a remedies plan is at Figure H-

2, Appendix G, to this part.

(b) The plan will be developed initially by the PFA with the

participation of the appropriate criminal investigators and other

relevant personnel such as the contracting officer. In significant

cases the PFA should also coordinate a remedies plan early with PFD.

Defective product/product substitution remedies plans must comply with

the requirements of Appendix D to this part.

following information and considerations:

(1) Summary of allegations and investigative results.

(2) Statement of any adverse impact on a DOD mission. DOD

investigative organizations, commanders, or procurement officials will

also provide this information to prosecutive authorities to enhance

prosecution of offenses or to prepare a victim impact statement

pursuant to Fed. R. Crim. P. 32(c)(2).

(3) The impact upon combat readiness and safety.

(4) Consideration of each criminal, civil, contractual, and

administrative remedy available, and documentation of those remedies,

either planned, in progress, or completed.

(5) Restrictions on the pursuit of any remedies such as grand jury

information or possible compromise of the investigation.

(d) When remedies plans are received by PFD they will be

coordinated with the headquarters of the appropriate DOD criminal

investigative organization involved.

(e) Testing necessary to support the investigation and remedies

plan should comply with Figure H-3, Appendix G, to this part.

Sec. 516.65 Litigation reports in civil recovery cases.

(a) All substantiated PFI cases will be evaluated by PFAs to

determine whether it is appropriate to recommend civil recovery

proceedings.

(b) Recovery should be considered under both statutory and common

law theories, including but not limited to the following:

(1) False Claims Act, 31 USC 3729.

(2) Anti-Kickback Act, 41 USC 51.

(3) Sherman Act, 15 USC 1-7.

(4) Racketeer Influenced and Corrupt Organizations Act, 18 USC

1961-1968.

(5) Common law fraud.

(6) Unjust enrichment.

(7) Constructive trust.

(8) Cases where contracts have been procured in violation of the

conflict of interest statute, 18 USC 218. See K&R Engineering Co. v.

United States, 616 F.2d 469 (Ct. Cl., 1980).

to determine if a litigation report is necessary. If requested by PFD,

the report should summarize the available evidence and applicable

theories of recovery and be prepared under Sec. 516.23 of this part. To

avoid unnecessary duplication of effort, recovery reports may include

and make liberal references to other reports previously prepared on a

given case such as the DFARS 209.406-3 (48 CFR 209.406-3) report.

(d) The MACOM PFI coordinator and PFA will monitor all civil fraud

recovery efforts throughout the command and will provide training and

technical assistance as required. Status reports of all civil fraud

recovery efforts will be provided through channels as required by PFD.

Sec. 516.66 Administrative and contractual actions.

(a) The following remedial options should be considered in response

to confirmed fraudulent activity:

(1) Contractual.

(i) Termination of contract for default.

(ii) Nonaward of contract based upon a finding of contractor

nonresponsibility. (If this appears to be a valid option, a DFARS

209.406-3 (48 CFR 209.406-3) report must be prepared where contractor

nonresponsibility is based on lack of integrity).

(iii) Rescission of contract.

(iv) Revocation of acceptance.

(v) Use of contract warranties.

(vi) Withholding of payments to contractor. In the case of

withholding pursuant to DFARS 2032.173, the Chief, PFD, is the Army

Remedy Coordinating Official.

(vii) Offset of payments due to contractor from other contracts.

(viii) Revocation of facility security clearances.

(ix) Increased level of quality assurance.

(x) Refusal to accept nonconforming goods.

(xi) Denial of claims submitted by contractors.

(xii) Removal of contract from automated solicitation or payment

system.

(2) Administrative.

(i) Change in contracting forms and procedures.

(ii) Removal or reassignment of government personnel.

(iii) Review of contract administration and payment controls.

(iv) Revocation of warrant of contracting officer.

(v) Suspension of contractor.

(vi) Debarment of contractor.

(b) In cases which are pending review or action by DOJ, PFAs should

coordinate with the DOJ attorney handling the case prior to initiating

any contractual or administrative remedy. In the case of ongoing

criminal investigations, this coordination will be accomplished through

the appropriate DOD criminal investigation organization.

Sec. 516.67 Overseas cases of fraud or corruption.

(a) Commanders of overseas major commands will establish

procedures, similar to this regulation and consistent with the DFARS,

and regulations and directives of their respective unified commands,

for reporting and coordination of available remedies in overseas

procurement fraud and corruption cases involving foreign firms and

individuals. Overseas major commands will also maintain liaison with

PFD and provide periodic reports of remedies coordination results.

(b) Overseas suspension and debarment actions are governed by DFARS

209.403 (48 CFR 209.403). The names of all firms and individuals

suspended or debarred will be expeditiously forwarded to PFD for

inclusion on the List of Parties Excluded From Federal Procurement or

NonProcurement Programs.

procurement process that involve U.S. firms or U.S. citizens may be

referred to PFD for coordination of remedies under this regulation.

Sec. 516.68 Program Fraud Civil Remedies Act (PFCRA).

(a) PFCRA was enacted on 21 October 1986 (Public Law 99-509) and

implemented by DOD on 30 August 1988 (DOD Directive 5505.5). (See

Appendix E to this part.)

(b) PFCRA expands the capability of the government to deter and

recover losses from false, fictitious or fraudulent claims and

statements. It is also applicable to program fraud and provides an

administrative remedy in addition to those otherwise available to the

Army in procurement fraud or pay and entitlements fraud cases.

duties and responsibilities under PFCRA as Authority Head are delegated

to the Army General Counsel. The Chief, Intellectual Property Law

Division, is the Army's Reviewing Official within the meaning of PFCRA.

Army implementation also requires DA to follow the policies and

procedures prescribed in enclosure 2 of DOD Directive 5505.5. (See

Appendix E to this part.)

(d) The DOD Inspector General (IG) is the Investigating Official

within DOD. The duties of this position will be performed by the

Assistant IG For Investigations. This individual is vested with the

authority to investigate all allegations of liability under PFCRA. That

authority includes the power to task subordinate investigative agencies

to review and report on allegations that are subject to PFCRA. If the

Investigative Official concludes that an action under PFCRA is

warranted in an Army case, the official will submit a report containing

the findings and conclusions of such investigation through PFD to the

Army Reviewing Official.

(e) Pursuant to DOD IG guidance, USACIDC will forward appropriate

cases that appear to qualify for resolution under PFCRA to the

Investigating Official in a timely manner. Additionally, USACIDC will

forward current information regarding the status of remedies pending or

concluded. USACIDC may obtain remedies information by coordinating with

PFD and the cognizant command.

(f) In pay and entitlement or transportation operation fraud cases,

USACIDC will coordinate with the Office of the Secretary of the Army,

Financial Management, Review and Oversight Directorate (SAFM-RO), to

determine the status of any pending or proposed action under the Debt

Collection Act. This information, in addition to information obtained

under Sec. 517.68(e), will be forwarded with appropriate cases to the

Investigating Official.

(g) In those cases where the Investigating Official has submitted a

report to the Army Reviewing Official for action under PFCRA, PFD will,

at the direction of the Reviewing Official, prepare all legal memoranda

as necessary to transmit the Reviewing Official's intention to issue a

complaint. As part of this responsibility PFD will do the following:

coordinate with the affected command or agency to ensure that all

appropriate remedies have been considered; evaluate the overall

potential benefits to the Army; and, ensure that action under PFCRA is

not duplicative of other remedies already taken. In order to fully

supplement the Reviewing Official's file, PFD may request a litigation

report.

(h) PFD will coordinate all cases involving transportation

operations emanating from Military Traffic Management Command (MTMC)

activity, under the military transportation exception to the FAR, and

all cases involving pay and entitlements fraud with SAFM-RO, for

comments and recommendations. These matters will be forwarded with the

case file to the Reviewing Official.

(i) If the Attorney General approves the issuance of a complaint,

PFD, at the direction of the Army Reviewing Official, shall prepare the

complaint and all necessary memoranda as required. PFD shall also

designate attorneys to represent the Authority in hearings under PFCRA.

Subpart I--Cooperation With the Office of Special Counsel

Sec. 516.69 Introduction.

This subpart prescribes procedures for cooperation with the Office

of Special Counsel (OSC) when OSC is investigating alleged prohibited

personnel practices or other allegations of improper or illegal conduct

within DA activities.

Sec. 516.70 Policy.

(a) DA policy follows:

(1) Civilian personnel actions taken by management officials,

civilian and military, will conform to laws and regulations

implementing established merit system principles and will be free of

any prohibited personnel practices.

(2) Management officials will take vigorous corrective action when

prohibited personnel practices occur. Disciplinary measures under AR

690-700, Chapter 751, may be initiated after consultation and

coordination with appropriate civilian personnel office and labor

counselor.

(b) DA activities will cooperate with OSC in the following ways:

(1) Promoting merit system principles in civilian employment

programs within DA.

(2) Investigating and reporting allegations of improper or illegal

conduct forwarded to the activity by HQDA.

(3) Facilitating orderly investigations by the OSC of alleged

prohibited personnel practices and other matters assigned for

investigation to the OSC, such as violations of the Whistleblower

Protection Act of 1989, the Freedom of Information Act, or the Hatch

Act.

Sec. 516.71 Duties.

(a) DA General Counsel. The DA General Counsel is responsible for

the following:

(1) Provide overall guidance on all issues concerning cooperation

with OSC, including the investigation of alleged prohibited personnel

practices and allegations of improper or illegal conduct.

(2) Review for adequacy and legal sufficiency each OSC report of

investigation that must be personally reviewed by the Secretary of the

Army.

(3) Ensure compliance with the Civil Service Reform Act of 1978 by

obtaining a suitable investigation of allegations of improper or

illegal conduct received from OSC. This includes compliance with time

limits for reporting results of the investigation and personal review

of the report by the Secretary of the Army when required.

(4) Forward to the DOD Inspector General (DODIG) copies of each

allegation of improper or illegal conduct referred to DA by OSC.

(5) Delegate to The Judge Advocate General the authority to act on

behalf of the DA General Counsel in all OSC investigations of

prohibited personnel practices.

(6) Act upon requests for counsel from ``accused'' or ``suspected''

employees.

(b) Chief, Labor and Employment Law Office. The Chief, Labor and

Employment Law Office, OTJAG (DAJA-LE) is responsible for the

following:

(1) Act for TJAG as the Senior Management Official in cooperating

with OSC. As Senior Management Official, the Chief, DAJA-LE, through

TJAG, will be responsible to the DA General Counsel for administration

of the policies and procedures contained in this chapter.

(2) Promptly inform the DA General Counsel of any OSC investigation

and consult with the DA General Counsel on any legal or policy issue

arising from an OSC investigation.

(3) Serve as the HQDA point of contact in providing assistance to

OSC.

(4) Act as DA attorney-of-record in administrative matters

initiated by OSC before the MSPB which arise from an OSC investigation.

As DA attorney-of-record, the Chief, DAJA-LE, will file necessary

pleadings and make necessary appearances before the MSPB to represent

DA interests.

(5) Monitor ongoing OSC investigations within DA.

(6) Ensure that appropriate DA personnel are fully apprised of

their rights, duties and the nature and basis for an OSC investigation.

(7) Review and prepare recommendations to the General Counsel

concerning any OSC recommended corrective action referred to DA. Such

review and recommendations will address whether disciplinary action

should be taken against DA civilian employees or military members, and

whether the information warrants referral to appropriate authorities

for corrective and disciplinary action.

(8) Seek OSC approval of DA proposed disciplinary action against an

employee for an alleged prohibited personnel practice or other

misconduct which is the subject of or related to any OSC investigation.

(9) Review and prepare recommendations for DA General Counsel

concerning requests for counsel, to include identifying available DA

attorneys to act as individual representatives. Upon approval of DA

General Counsel, appoint DA civilian and military attorneys, to include

attorneys from the U.S. Army Materiel Command and the Corps of

Engineers, to represent individual military members or employees.

(10) Determine, to the extent practicable, whether an investigation

is being or has been conducted which duplicates, in whole or in part, a

proposed or incomplete OSC investigation, and convey that information

to the OSC whenever it might avoid redundant investigative efforts.

(11) Provide guidance and assistance to activity Labor Counselors

in fulfilling their duties as Liaison Officers.

the following:

(1) Act as Liaison Officer for OSC investigations arising within

the command, activity or installation serviced by the Labor Counselor's

client Employment Office.

(2) Promptly inform the MACOM labor counselor and the Chief, DAJA-

LE, of any OSC inquiry or investigation.

(3) Act as the legal representative of the command, activity, or

installation.

(4) Assist the OSC investigator with administrative matters related

to the investigation, such as requests for witnesses and documents.

(5) Process all OSC requests for documents.

(6) Make appropriate arrangements for OSC requests to interview

civilian employees and military members.

(7) Ensure that personnel involved are advised of the nature and

basis for an OSC investigation, the authority of the OSC, and their

rights and duties.

(8) Consult with the Chief, DAJA-LE, on policy and legal issues

arising from the OSC investigation.

(9) Keep the Chief, DAJA-LE, informed of the status of the OSC

investigation.

(l0) Act as agency representative before the MSPB in actions

initiated by employees (individual right of action appeals).

Sec. 516.72 Procedures.

(a) Witnesses and counsel for consultation.

(1) DA military and civilian managers, supervisors, and employees

who are requested by OSC for an interview will be made available in

accordance with arrangements the Labor Counselor will establish.

Requests for the testimony of IGs will be coordinated with the

Inspector General Legal Office, SAIG-ZXL, DSN 227-9734 or Commercial

(703) 697-9734.

(2) The Labor Counselor will ensure that witnesses are aware of

their obligation to answer OSC questions, their potential to be

considered ``suspects'' in OSC investigations, and their right to the

assistance of counsel during interviews with OSC representatives. If

the requested witness is not an ``accused'' or ``suspected'' individual

and the witness asks for assistance of counsel, a DA attorney will be

made available for the limited purpose of consultation regarding the

witness' rights and obligations. An attorney-client relationship will

not be established. (See Appendix F to this part).

(3) The Labor Counselor will arrange for individual counsel for

consultation from local assets. If local assets are not sufficient,

assistance may be requested from other DOD activities in the area or

from HQDA, DAJA-LE. DA attorneys tasked to consult with one or more

witnesses individually will not be tasked to represent the DA activity

concerned.

(4) The Labor Counselor, as the legal representative of the

activity, is precluded from assisting or representing individual

witnesses during OSC interviews.

(b) ``Accused'' or ``suspected'' DA personnel and counsel for

representation.

(1) If the OSC identifies a DA civilian employee or a military

member as an ``accused'' or ``suspected'' individual, or if the Labor

Counselor concludes that an individual is a ``suspect,'' the Labor

Counselor will inform the individual. The Labor Counselor also will

advise the individual of the availability of counsel for representation

upon approval by DA General Counsel. (See Glossary, Counsel for

Representation).

(2) If the ``suspected'' individual desires legal representation by

DA, the individual must request counsel by submitting a written request

through DAJA-LE to DA General Counsel. (See Figure I-1, Appendix G, to

this part).

(3) During the investigation but prior to DA General Counsel

approval of the request for counsel, an ``accused'' or ``suspected''

individual will be provided the assistance of counsel for consultation

in the same manner as any other OSC requested witness. ``Accused'' or

``suspected'' individuals who do not request counsel for representation

will be provided counsel for consultation in the same manner as any

other OSC requested witness.

(4) If the DA General Counsel approves the request for counsel, the

Chief, DAJA-LE, will appoint a DA attorney to represent the individual.

This appointment may be made telephonically but will be confirmed in

writing. The Chief, DAJA-LE, will make appropriate coordination with

MACOM SJAs and command counsel to confirm availability of the attorney.

(5) An attorney appointed by DA may represent a civilian employee

in any proceeding initiated by OSC before the MSPB. However, counsel

provided by DA may not represent the employee in any proceeding

initiated by DA, in any appeal from a final decision by the MSPB, or in

any collateral proceeding before any forum other than the MSPB.

(6) OSC may not bring a disciplinary action before the MSPB against

a military member. Accordingly, DA counsel will not be required to

represent the military member in any MSPB disciplinary proceeding.

However, counsel may represent the member during the OSC investigation

with the understanding that the evidence obtained by OSC may be

referred to the member's command for possible disciplinary action under

the UCMJ or appropriate regulations. If DA initiates action against the

military member for misconduct disclosed in the OSC investigation, the

member will obtain counsel as provided under the UCMJ or relevant

regulations.

(1) OSC requests for records must be in writing. The Labor

Counselor will assist OSC representatives in identifying the custodian

of specific records sought during the inquiry.

(2) Generally, requested records should be furnished to OSC

representatives if such records would be released under AR 25-55 or AR

340-21 to other government agencies in the normal course of official

business. Records constituting attorney work product should not be

released without approval of the Chief, DAJA-LE. IG records will not be

released without the approval of the Inspector General. (AR 20-1). The

Labor Counselor should seek guidance from the Chief, DAJA-LE, if there

is any doubt concerning the release of records.

(3) If, after completion of the OSC investigation, the OSC files a

complaint against DA or a DA employee, release of records and other

information will be accomplished pursuant to MSPB rules of discovery (5

CFR part 1201, subpart B).

(d) Funding. The command, activity, or installation within which

the allegations of misconduct arose will provide funding for travel,

per diem and other necessary expenses related to the OSC investigation.

These expenses may include appropriate funding for witnesses, counsel

for consultation and DA General Counsel approved counsel for

representation.

Sec. 516.73 Assistance from HQDA.

Labor Counselors may seek guidance on questions arising from

implementation of this chapter by calling the Chief, DAJA-LE, DSN 225-

9476/9481 or Commercial (703) 695-9476/9481.

Subpart J--Soldiers Summoned to Serve on State and Local Juries

Sec. 516.74 General.

(a) This subpart implements 10 U.S.C. Sec. 982 and DOD Directive

5525.8. It establishes Army policy concerning soldiers on active duty

who are summoned to serve on state and local juries.

(b) This subpart does not apply to Army National Guard soldiers in

an annual training or full-time AGR (Active Guard Reserve) status under

Title 32, U.S. Code. Soldiers in a Title 32 status must refer to their

respective state law for relief from state or local jury duty.

Sec. 516.75 Policy.

(a) Active duty soldiers should fulfill their civic responsibility

by serving on state and local juries, so long as it does not interfere

with military duties.

(b) The following active duty soldiers are exempt from complying

with summons to serve on state and local juries:

(1) General officers.

(2) Commanders.

(3) Active duty soldiers stationed outside the United States,

Puerto Rico, Guam, the Northern Mariana Islands, American Samoa, and

the Virgin Islands.

(4) Active duty soldiers in a training status.

(5) Active duty soldiers assigned to forces engaged in operations.

local juries if compliance with such summons would have either of the

following effects:

(1) It would unreasonably interfere with performance of the

soldier's military duties; or,

(2) It would adversely affect the readiness of a summoned soldier's

unit, command, or activity.

Sec. 516.76 Exemption determination authority.

(a) The commander exercising special court-martial convening

authority (SPCMCA) over a unit has the authority to determine whether a

soldier of that unit, who has been served with a summons, is exempt

from serving on a state or local jury unless that authority has been

limited or withheld in accordance with paragraph (b) or (c) of this

section. This authority may not be delegated to a subordinate commander

who does not exercise SPCMCA.

(b) A commander superior to the SPCMCA, who also exercises SPCMCA

or general court-martial convening authority (GCMCA) over a unit, may

limit or withhold the exemption determination authority of subordinate

commanders.

to be attached or detailed to another command for disciplinary purposes

(for example, ``for administration'' or ``for administration of

military justice''), may reserve exemption determination authority to

the commander exercising SPCMCA in the chain of command to which the

unit or soldier is assigned rather than the chain of command to which

the unit or soldier is attached or detailed.

Sec. 516.77 Procedures for exemption.

(a) Active duty soldiers served with a summons to serve on a state

or local jury will promptly advise their commander and provide copies

of pertinent documents.

(b) Unit commanders will evaluate the summons considering both the

individual soldier's duties and the unit mission. Coordination with the

servicing judge advocate or legal adviser and with the appropriate

state or local official may be necessary to determine any impact on the

soldier's duties or on unit readiness.

(1) If the soldier is not exempt under Sec. 516.75 (b) or (c), the

commander will process the soldier for permissive TDY in accordance

with AR 630-5, Leaves and Passes.

(2) If the soldier is exempt under Sec. 516.75 (b) or (c), the

commander will forward the summons and any related documentation, with

recommendations, through the chain of command to the commander with

exemption determination authority over the soldier concerned.

soldier concerned will determine whether the soldier is exempt. His

determination is final.

(d) The exemption determination authority will notify responsible

state or local officials whenever a soldier summoned for jury duty is

exempt. The notification will cite 10 U.S.C. 982 as authority.

Sec. 516.78 Status, fees, and expenses.

(a) Soldiers who are required to comply with summons to serve on

state or local juries will be placed on permissive TDY under the

provisions of AR 630-5.

(b) Jury fees accruing to soldiers for complying with the summons

to serve on state and local juries must be turned over to the

appropriate finance office for deposit into the U.S. Treasury. Commands

will establish procedures with local authorities and their servicing

finance and accounting activity to ensure that such jury fees are so

deposited. Soldiers, however, may keep any reimbursement from state or

local authority for expenses incurred in the performance of jury duty,

including transportation, meals, and parking.

Appendix A to Part 516--References

Publications referenced in this part can be obtained at the

National Technical Information Services, U.S. Department of

Commerce, 5285 Port Royal Road, Springfield, VA 22161.

Required Publications

AR 25-55, The Department of the Army Freedom of Information Act

Program. (Cited in Secs. 516.40, 516.72)

AR 27-10, Military Justice. (Cited in Sec. 516.4)

AR 27-20, Claims. (Cited in Secs. 516.4, 516.33, 516.22)

AR 27-60, Patents, Inventions, and Copyrights.

AR 37-60, Pricing for Material and Services. (Cited in Sec. 516.43.)

AR 37-103, Finance and Accounting for Installations: Disbursing

Operations. (Cited in Sec. 516.22.)

AR 60-20, Operating Policies. (Cited in Sec. 516.22.)

AR 190-9, Absentee Deserter Apprehension Program and Surrender of

Military Personnel to Civilian Law Enforcement Agencies. (Cited in

Sec. 516.9)

AR 210-47, State and Local Taxation of Lessee's Interest in Wherry

Act Housing (Title VIII of the National Housing Act).

AR 215-1, Administration of Army Morale, Welfare, and Recreation

Activities and Nonappropriated Fund Instrumentalities. (Cited in

Sec. 516.22.)

AR 215-2, The Management and Operation of Army Morale, Welfare, and

Recreation Activities and Nonappropriated Fund Instrumentalities.

(Cited in Sec. 516.22.)

AR 310-1, Publications, Blank Forms, and Printing Management.

AR 340-21, The Army Privacy Program. (Cited in Secs. 516.40,

516.72.)

AR 380-5, Department of the Army Information Security Program.

AR 405-25, Annexation. (Cited in Sec. 516.22.)

AR 630-5, Leaves and Passes. (Cited in Secs. 516.55, 516.77,

516.78.)

AR 630-10, Absence Without Leave, Desertion, and Administration of

Personnel Involved in Civilian Court Proceedings. (Cited in

Sec. 516.9)

Related Publications

A related publication is merely a source of additional

information. The user does not have to read it to understand the

regulation.

AR 20-1, Inspector General Activities and Procedures. (Cited in

Secs. 516.41, 516.72.)

AR 27-1, Judge Advocate Legal Service.

AR 27-3, Legal Assistance. (Cited in Sec. 516.6.)

AR 27-10, Military Justice. (Cited in Secs. 516.4, 516.5, 516.15.)

AR 27-50, Status of Forces Policies, Procedures, and Information.

(Cited in Sec. 516.15.)

AR 37-104-3, Military Pay and Allowances Procedures.

AR 37-105, Finance and Accounting for Installations: Civilian Pay

Procedures.

AR 55-19, Marine Casualties. (Cited in Sec. 516.22.)

AR 190-29, Misdemeanors and Uniform Violation Notices Referred to

U.S. Magistrates or District Courts.

AR 190-40, Serious Incident Report. (Cited in Sec. 516.15.)

AR 210-50, Family Housing Management. (Cited in Sec. 516.37.)

AR 335-15, Management Information Control System. (Cited in

Sec. 516.15.)

AR 600-40, Apprehension, Restraint, and Release to Civil

Authorities.

AR 600-50, Standards of Conduct for Department of the Army

Personnel.

AR 690-700, Personnel Relations and Services. (Cited in

Sec. 516.70.)

Prescribed Form

DA Form 4, Department of the Army Certification for Authentication

of Records. (Prescribed in Sec. 516.25, 516.35.)

Referenced Forms

DA Form 2631-R, Medical Care-Third Party Liability Notification.

DA Form 3154, MSA Invoice and Receipt.

Appendix B to Part 516--Mailing Addresses

The following is a list of frequently referred to Department of

the Army Services/Divisions/Offices and their mailing addresses:

COMMANDER (JACS-Z), U.S. ARMY CLAIMS SERVICE, OTJAG, BUILDING 4411,

ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD 20755-5360

(1) PERSONNEL CLAIMS AND RECOVERY DIVISION (JACS-PC), U.S. ARMY

CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE,

FORT GEORGE G. MEADE, MD 20755-5360

(2) TORT CLAIMS DIVISION (JACS-TC), U.S. ARMY CLAIMS SERVICE,

OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G.

MEADE, MD 20755-5360

CONTRACT APPEALS DIVISION, HQDA(DAJA-CA), 901 NORTH STUART STREET,

ARLINGTON, VA 22203-1837

CONTRACT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY

PENTAGON, WASHINGTON, DC 20310-2200

CRIMINAL LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY

PENTAGON, WASHINGTON, DC 20310-2200

ENVIRONMENTAL LAW DIVISION, HQDA(DAJA-EL), 901 NORTH STUART STREET,

ARLINGTON, VA 22203-1837

LABOR AND EMPLOYMENT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200

ARMY PENTAGON, WASHINGTON, DC 20310-2200,

LITIGATION DIVISION, HQDA(DAJA-LT), 901 NORTH STUART STREET,

ARLINGTON, VA 22203-1837

(1) CIVILIAN PERSONNEL BRANCH, HQDA(DAJA-LTC), 901 NORTH STUART

STREET, ARLINGTON, VA 22203-1837

(2) GENERAL LITIGATION BRANCH, HQDA(DAJA-LTG), 901 NORTH STUART

STREET, ARLINGTON, VA 22203-1837

(3) MILITARY PERSONNEL BRANCH, HQDA(DAJA-LTM), 901 NORTH STUART

STREET, ARLINGTON, VA 22203-1837

(4) TORT BRANCH, HQDA(DAJA-LTT), 901 NORTH STUART STREET,

ARLINGTON, VA 22203-1837

PERSONNEL, PLANS, AND TRAINING OFFICE, THE JUDGE ADVOCATE GENERAL,

2200 ARMY PENTAGON, WASHINGTON, DC 20310-2200

PROCUREMENT FRAUD DIVISION, HQDA(DAJA-PF), 901 NORTH STUART STREET,

ARLINGTON, VA 22203-1837

INTELLECTUAL PROPERTY DIVISION, HQDA(JALS-IP), 901 NORTH STUART

STREET, ARLINGTON, VA 22203-1837

REGULATORY LAW OFFICE, HQDA(JALS-RL), 901 NORTH STUART STREET,

ARLINGTON, VA 22203-1837

THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON, WASHINGTON, DC

20310-2200

THE AJAG FOR CIVIL LAW & LITIGATION, THE JUDGE ADVOCATE GENERAL,

2200 ARMY PENTAGON, WASHINGTON, DC 20310-2200

U.S. ARMY TRIAL DEFENSE SERVICE, HQDA(JALS-TD), NASSIF BUILDING,

FALLS CHURCH, VA 22041-5013

Appendix C to Part 516--Department of Defense Directive 5405.2, Release

of Official Information in Litigation and Testimony by DoD Personnel as

Witnesses

Department of Defense Directive

July 23, 1985, Number 5405.2, GC, DOD

Subject: Release of Official Information in Litigation and Testimony

by DoD Personnel as Witnesses

References:

(a) Title 5, United States Code, Sections 301, 552, and 552a

(b) Title 10, United States Code, Section 133

Program,'' December 20, 1976

(d) DoD Directive 5200.1-R, ``Information Security Program

Regulation,'' August 1982, authorized by DoD Directive 5200.1, June

7, 1982

(e) DoD Directive 5230.25, ``Withholding of Unclassified Technical

Data from Public Disclosure,'' November 6, 1984

(f) DoD Instruction 7230.7, ``User Charges,'' January 29, 1985

(g) DoD Directive 5400.7-R, ``DoD Freedom of Information Act

Program,'' December 1980, authorized by DoD Directive 5400.7, March

24, 1980

A. Purpose

Under Section 301 reference (a) and reference (b), this

Directive establishes policy, assigns responsibilities, and

prescribes procedures for the release of official DoD information in

litigation and for testimony by DoD personnel as witnesses during

litigation.

B. Applicability and Scope

1. This Directive applies to the Office of the Secretary of

Defense (OSD), the Military Departments, the Organization of the

Joint Chiefs of Staff (OJCS), the Unified and Specified Commands,

and the Defense Agencies (hereafter referred to as ``DoD

Components''), and to all personnel of such DoD Components.

2. This Directive does not apply to the release of official

information or testimony by DoD personnel in the following

situations:

a. Before courts-martial convened by the authority of the

Military Departments or in administrative proceedings conducted by

or on behalf of a DoD Component;

b. Pursuant to administrative proceedings conducted by or on

behalf of the Equal Employment Opportunity Commission (EEOC) or the

Merit Systems Protection Board (MSPB), or pursuant to a negotiated

grievance procedure under a collective bargaining agreement to which

the Government is a party;

c. In response to requests by Federal Government counsel in

litigation conducted on behalf of the United States;

d. As part of the assistance required in accordance with the

Defense Industrial Personnel Security Clearance Program under DoD

Directive 5220.6 (reference (c)); or

e. Pursuant to disclosure of information to Federal, State, and

local prosecuting and law enforcement authorities, in conjunction

with an investigation conducted by a DoD criminal investigative

organization.

3. This Directive does not supersede or modify existing laws or

DoD programs governing the testimony of DoD personnel or the release

of official DoD information during grand jury proceedings, the

release of official information not involved in litigation, or the

release of official information pursuant to the Freedom of

Information Act, 5 U.S.C. Section 552 (reference (a)) or the Privacy

Act, 5 U.S.C. Section 552a (reference (a)), nor does this Directive

preclude treating any written request for agency records that is not

in the nature of legal process as a request under the Freedom of

Information or Privacy Acts.

4. This Directive is not intended to infringe upon or displace

the responsibilities committed to the Department of Justice in

conducting litigation on behalf of the United States in appropriate

cases.

5. This Directive does not preclude official comment on matters

in litigation in appropriate cases.

6. This Directive is intended only to provide guidance for the

internal operation of the Department of Defense and is not intended

to, does not, and may not be relied upon to create any right or

benefit, substantive or procedural, enforceable at law against the

United States or the Department of Defense.

C. Definitions

1. Demand. Subpoena, order, or other demand of a court of

competent jurisdiction, or other specific authority for the

production, disclosure, or release of official DoD information or

for the appearance and testimony of DoD personnel as witnesses.

2. DoD Personnel. Present and former U.S. military personnel;

Service Academy cadets and midshipmen; and present and former

civilian employees of any Component of the Department of Defense,

including nonappropriated fund activity employees; non-U.S.

nationals who perform services overseas, under the provisions of

status of forces agreements, for the United States Armed Forces; and

other specific individuals hired through contractual agreements by

or on behalf of the Department of Defense.

3. Litigation. All pretrial, trial, and post-trial stages of all

existing or reasonably anticipated judicial or administrative

actions, hearings, investigations, or similar proceedings before

civilian courts, commissions, boards (including the Armed Services

Board of Contract Appeals), or other tribunals, foreign and

domestic. This term includes responses to discovery requests,

depositions, and other pretrial proceedings, as well as responses to

formal or informal requests by attorneys or others in situations

involving litigation.

4. Official Information. All information of any kind, however

stored, that is in the custody and control of the Department of

Defense, relates to information in the custody and control of the

Department, or was acquired by DoD personnel as part of their

official duties or because of their official status within the

Department while such personnel were employed by or on behalf of the

Department or on active duty with the United States Armed Forces.

D. Policy

It is DoD policy that official information should generally be

made reasonably available for use in Federal and state courts and by

other governmental bodies unless the information is classified,

privileged, or otherwise protected from public disclosure.

E. Responsibilities

l. The General Counsel, Department of Defense (GC, DoD), shall

provide general policy and procedural guidance by the issuance of

supplemental instructions or specific orders concerning the release

of official DoD information in litigation and the testimony of DoD

personnel as witnesses during litigation.

2. The Heads of DoD Components shall issue appropriate

regulations to implement this Directive and to identify official

information that is involved in litigation.

F. Procedures

1. Authority to Act

a. In response to a litigation request or demand for official

DoD information or the testimony of DoD personnel as witnesses, the

General Counsels of DoD, Navy, and the Defense Agencies; the Judge

Advocates

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