this nature to the Staff Judge Advocate concerned, if the requested appearance is upon the behalf of a military accused, the individual attorney may forward directly to Chief, Defense Appellate Division (HQDA (JAAJ-DD)), Nassif Building, Falls Church, Va. 22041, a full analysis of the case including venue, nature of relief to be requested, facts and legal authorities relied upon, and his reasons for requesting authority to appear in civil courts. The detailed contents of this communication with the Chief, Defense Appellate Division, will be considered privileged. Staff Judge Advocates will neither request nor require disclosure of its contents. Chief, Defense Appellate Division, after consideration of information received will furnish TJAG with evaluation of the request from the viewpoint of senior defense counsel.

(e) Service of process-(1) Criminal process. (i) The delivery of persons charged with criminal offenses, at the request of or pursuant to process issued by the civil authorities, will be accomplished within the United States in accordance with § 503.2 of this chapter, and in foreign countries in accordance with paragraph 4, AR 600-40.

(ii) Commanders and other Army officials will be governed by the policies set forth in paragraph (e)(2) of this section, in the treatment of process issued for the attendance of witnesses or the production of evidence in criminal cases. See also § 516.4.

(2) Civil process. (i) The service of process is not a function of the Department of the Army or of its military personnel or civilian employees in their official capacity, except when required by treaty or international agreement. It is the policy of the Department of the Army, however, to assist civil officials in the service of process as provided in paragraphs (e)(2) (iii) and (iv) of this section.

(ii) Commanders and other Army officials will not prevent or evade the service of process in legal actions brought against the United States or themselves concerning their official duties. If acceptance of service of process would interfere with the performance of his military duties, a commander or other official may desig

nate a representative to accept service in his stead.

(iii) Service of civil process within the United States, its territories and possessions is as follows:

(a) Process of Federal courts. Service of process is accomplished in accordance with the rules of the Federal court concerned (38 U.S.C. appendix). Installation commanders may impose reasonable restrictions upon persons who enter their installations to serve the process.

(b) Process of State courts in areas of exclusive Federal jurisdiction not subject to the right to serve process. Commanders or other Army officials in charge will bring the matter to the attention of the individual requested to be served and will determine whether he wishes to accept service voluntarily in accordance with the laws of the State issuing the process. Judge advocates or other competent officials will inform the individual of the legal effect of voluntary acceptance of service. If the individual does not desire to accept service, the party requesting such service will be notified and will be informed that the nature of the jurisdiction precludes service by State authorities on the military installation.

(c) Process of State courts in areas of exclusive Federal jurisdiction in which the right to service process is reserved by, or granted to, the State or States, in areas of concurrent jurisdiction, and in areas in which the United States has only a proprietorial interest. If Army officials are asked to serve process, they may proceed as in paragraph (e)(2)(iii)(b) of this section. If the individual declines to accept service, the requesting party will be so notified and will be informed that he may proceed through authorities authorized to serve process by the applicable State law. Civil officials authorized by applicable State law will be permitted, upon proper application, to enter areas subject to the right to serve process for the purpose of making service. Commanders or other Army officials in charge will assist the civil officials by making military personnel or civilian employees available for service of process, subject to reasonable limitations. In addition, civil

officials may enter areas subject to the right to serve process for the purpose of levy on and the subsequent sale of personal property of personnel residing thereon, subject to reasonable limitations. This authority does not extend, however, to the levy on or the sale of personal property essential to or proper for the use of military personnel or civilian employees in the performance of their official duties.

(d) Process of foreign courts. In the absence of treaty or agreements to the contrary, individuals or agencies requesting the assistance of military authorities in serving process of foreign courts will be advised to proceed as prescribed in section 1696 of title 28, United States Code.

(iv) Service of civil process outside the United States, its territories and possessions is as follows:

(a) Process of foreign courts. In foreign countries the service of process issued by foreign courts, including subpenas duce tecum, will be made in accordance with the law of the place of service except as otherwise provided by applicable treaties or agreements between the host country and the United States. In foreign areas under exclusive U.S. jurisdiction, service of process issued by foreign courts will be made in accordance with the law specified by appropriate U.S. authority in such areas (e.g., organic acts, territorial codes, or executive orders).

(b) Process of Federal courts. Service of process is accomplished in accordance with sections 1781 and 1783, title 28, United States Code, and with the rules of the Federal court concerned. See especially rules 4, 5, and 45, Federal Rules of Civil Procedure, 28 U.S.C. appendix. Installation commanders may impose reasonable restrictions upon persons who enter their installation to serve process.

(c) Process of State courts. Army personnel requested to serve process will follow the procedures prescribed in paragraph (e)(2)(iii)(b) of this section. If the individual will not accept service voluntarily, the party requesting service will be so notified and advised that he should follow the procedures prescribed or recognized by the law of the foreign country concerned for obtain

ing service of process within its territory.

(d) Suits against agencies or instrumentalities of the United States. Any writ, summons, notice of legal proceedings or other foreign civil process served upon or otherwise delivered to an Army officer, employee, or activity will be referred immediately upon receipt to the appropriate judge advocate or legal adviser, who will return the document to the issuing authority with a suitable statement explaining the lack of authority of the person or activity to accept service on behalf of the United States, and suggesting that service or delivery be made upon the United States through established diplomatic channels.

[37 FR 23720, Nov. 8, 1972]

§ 516.2 Defense of legal proceedings.

(a) Defense by the Department of Justice and U.S. Attorneys-(1) Responsibilities. The Department of Justice is responsible for the defense of suits brought against the United States, its agencies and instrumentalities, and officials and employees whose official conduct is involved, in all courts within the United States or abroad (28 CFR, Part O). Under the direction of the Attorney General, U.S. Attorneys normally afford counsel and representation of the defendants in such suits. In addition, U.S. Attorneys will defend civic actions or proceedings brought against military personnel or civilian employees arising from their operation of motor vehicles in the scope of office or employment (28 CFR Part 15).

(2) Policies. It is the policy of the Department of Justice to afford counsel and representation to military personnel and civilian employees of the Department of the Army and its agencies and instrumentalities who are sued civilly or charged with violation of local or State criminal laws as a result of the performance of their official duties. This policy applies wherever property damage, personal injury or death has resulted or where a substantial Federal interest is involved. In addition, representation may be furnished private interests in suits in which the Government ultimately

may be required to make reimbursement. Otherwise, except where unusual circumstances exist, representation will be declined. Representation may also be declined where the military personnel or civilian employee is adequately protected by his own liability insurance and potential liability of the United States appears not to be involved.

(b) Procedures for obtaining representation (1) Department of Justice and U.S. Attorneys. As to any action or proceeding in which Government representation may be afforded under the circumstances specified in paragraph (a) of this section, the judge advocate or a legal adviser will:

(i) If the action or proceeding is a civil suit brought against a military person or a civilian employee on account of his operation of a motor vehicle in the scope of his office or employment, obtain representation by taking the actions specified in paragraph 2-3e(2), AR 27-40.

(ii) In other cases, where time for response is limited, request the appropriate U.S. Attorney to afford temporary counsel and representation. The Judge Advocate General will be promptly advised of the request for representation and of the action being taken thereon for any confirmatory action necessary. (iii) Otherwise, promptly refer the matter to The Judge Advocate General with the necessary justification.

(2) Private counsel at Government expense. (i) Except as provided in paragraph (b)(2)(iii) of this section, requests for the employment of private counsel at Government expense will be referred through channels to The Judge Advocate General. Every such request will be accompanied by a statement of facts justifying the request and the recommendations of commanders or supervisors concerned. Persons who employ private counsel in such cases should be advised that they may be individually responsible for any expenses thus incurred, if they do so without notice from The Judge Advocate General that specific authorization has been obtained.

(ii) In actions or proceedings brought in foreign countries, if immediate court representation is required beyond feasible handling by the judge

advocate concerned and the local court or agency has denied a request for a stay or continuance to permit action on a formal request for the hiring of a local attorney, local counsel may be retained, preferably selected from a listing of qualified and suitable foreign counsel maintained at the United States Embassy or Consulate in the country or city in which the action or proceeding has been initiated. The retention of such counsel will specifically be made contingent on confirmation by the Department of Justice. If the case falls within its responsibility, the Department of Justice will employ the attorney thus selected or pay him for the services performed in the event he is not retained generally. The local attorney retained under this emergency authorization should avoid any steps which could be construed as a waiver of sovereign immunity of the United States, its agencies and instrumentalities, and officials or employees whose official conduct is involved, from suit in a foreign court. Any appearance by such counsel, prior to receipt of instructions from the Department of Justice, should be limited to the local equivalent of a special appearance on the jurisdictional point or the procuring of a stay of the proceedings, provided such actions would not constitute a general appearance.

(iii) Counsel may be hired to represent persons subject to the Uniform Code of Military Justice before foreign courts and administrative agencies (10 U.S.C. 1037). Requests for such counsel will be processed under AR 27-50.

(3) Government contractors. (i) Upon request from the Army, the Department of Justice normally will defend suits against contractors whose contracts with the United States provide for reimbursement to the contractor for recoveries against them arising out of any suits in connection with the performance of the contract, or for the reimbursement of the fees paid private counsel and the costs of such litigation.

(ii) Litigation Division, Office of The Judge Advocate General, will decide which cases referred to it will be referred to the Department of Justice with a request that the contractor be

represented by a U.S. Attorney. Such representation will not be requested in cases where no investigative report or pleadings are required to be furnished to The Judge Advocate General. Upon notice of the commencement of any suit against a contractor which requires the submission of an investigative report to The Judge Advocate General, the contracting agency will ascertain whether the contractor desires government representation. If such representation is desired, the contracting agency will obtain from the contractor an executed agreement for representation and forward it with the investigative report.

(iii) Upon receipt of advice that the U.S. Attorney will act on behalf of the contractor, or that his services are not available, the contracting officer or purchasing office will so inform the contractor.

(iv) The following relationships and responsibilities in the conduct of any ensuing litigation are furnished for guidance:

(a) Unless the contractor requests and is authorized representation by a U.S. Attorney, it is presumed that the contractor will obtain such services of private counsel as are reasonably necessary to defend the appropriate contractor interests.

(b) Where the contractor is represented by a U.S. Attorney, there is no objection to the participation of private counsel employed by the contractor, provided it is understood the U.S. Attorney has complete control of the litigation. Fees for the services of private counsel in such cases will not be reimbursable except under unusual circumstances and then only if approved by The Judge Advocate General.

(c) The Department of Justice does not charge the contractor or the Department of the Army for any expenses incident to services performed by a U.S. Attorney.

(d) The compromise of a suit is primarily for determination by the contractor. Aspects of reimbursement under the contract are primarily for determination by the contracting officer. If the approval of a compromise by higher authority is desired, the contracting officer may forward the

compromise proposal with his views and those of the U.S. Attorney, if one is participating in the case, through procurement channels.

(e) Private counsel representing the contractor may seek advice from the Army with respect to appealing an adverse judgment. In such case the matter may be referred through procurement channels to The Judge Advocate General.

The reimbursability and reasonableness of the fees of private counsel are primarily for determination by the contracting officer.

[37 FR 23722, Nov. 8, 1972]

§ 516.3 General.

(a) Purpose. This section and §§ 516.4 and 516.5 govern the release of information exempt from release to the public when this information is sought for use in litigation and the appearance of military personnel and civilian employees of the Army as witnesses before civilian courts and regulatory bodies. It pertains to private litigation as well as to litigation in which the United States has an interest.

(b) Explanation of terms—(1) Information exempt from release to the public. Those categories of information delineated or defined by § 518.10 of this subchapter.

(2) Private litigation. Litigation in which the United States is not a party and in the outcome of which it has no interest, either direct or indirect.

(3) Litigation in which the United States has an interest. (i) The United States or one of its agencies or instrumentalities has been or probably will be named as a party; or

(ii) The suit is against a military member or civilian employee of the Army or one of its agencies or instrumentalities and arises out of the individual's performance of official duties;

or

(iii) The suit arises out of an Army contract, subcontract, or purchase order under the terms of which the United States may be required to reimburse the contractor for recoveries, fees, or costs of the litigation; or

(iv) The suit involves administrative proceedings before Federal, State, mu

nicipal, or foreign tribunals or regulatory bodies that may result in a financial impact upon the Army; or

(v) The suit may affect the operations of the Army or purport to require, limit, or interfere with official action by a military member or civilian employee; or

(vi) The United States has a financial interest in the plaintiff's recovery;

or

(vii) Foreign litigation in which the United States is bound by treaty or agreement to insure attendance of military personnel or civilian employees.

(4) Release of information. The disclosure of information from Army records by furnishing copies, extracts, or summaries of such records; by permitting examination of such records; or by permitting interview with or statement by the custodian or other person having knowledge of their content.

(5) Subpoena. Includes Subpoena Ad Testificandum and Subpoena Duces Tecum.

(c) Related regulations. The basic policies for release of information are in Part 518 of this subchapter. Other regulations restrict the release of specific types of information and are applicable when consistent with this regulation and Part 518 of this subchapter. Special note should be made of the regulations listed in the appendix.

(d) Reference to The Judge Advocate General. (1) Requests and subpoenas for information exempt from release to the public when this information is sought for use in litigation or for the appearance of witnesses which require approval by the Department of the Army will be submitted to HQDA (DAJA—LT) WASH DC 20310, except:

(i) Those involving patents, copyrights, privately developed technical information, or trademarks will be addressed to HQDA (DAJA-PA) WASH DC 20310.

(ii) Those involving problems of taxation will be addressed to HQDA (DAJA—PL) WASH DC 20310.

(iii) Those involving communication, transportation, or utility service proceedings will be addressed to HQDA (DAJA-RL) WASH DC 20310.

(2) Requests and subpoenas forwarded should be accompanied by such of the following data as may be appropriate:

(i) Parties (names or prospective) to the proceeding, their attorneys, and case number, where appropriate;

(ii) Party making the request (if a subpoena, indicate moving party) and his attorney;

(iii) Name of tribunal in which the proceeding is pending;

(iv) Nature of the proceeding; (v) Date of receipt of request or date and place of service of subpoena;

(vi) Name, grade, position, and organization of person receiving request or served with subpoena;

(vii) Date, time, and place designated in request or subpoena for production of information or appearance of witness;

(viii) Nature of information sought or document requested, and place where document is maintained;

(ix) A copy of each document requested. If the document is voluminous, a description may be forwarded in lieu of the copy;

(x) Analysis of the problem with recommendations of the forwarding

agency.

(e) Determination by The Judge Advocate General. The Judge Advocate General, acting personally or through such subordinates as he may designate, will coordinate within Headquarters, Department of the Army, all requests or subpoenas referred to him pursuant to paragraph (d) of this section. He will determine whether the witness should be permitted to testify or to grant an interview or whether the information should be released. Authority may be granted for release of information or for the appearance of a witness even though the information may be used by or the appearance may be on behalf of a party whose interest is adverse to the interest of the United States.

(f) Response to subpoena. This paragraph provides policy and procedures for response to subpoenas.

(1) No present or former military member or civilian employee of the Department of the Army shall, in response to the demand of a court order or other authority, produce or disclose

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