2 FAM 500
LEGAL AFFAIRS
2 FAM 510
SERVICE OF LEGAL PROCESS
(CT:GEN-529; 10-09-2018)
(Office of Origin: L-H/EX)
2 FAM 511 SUBPOENAS
(CT:GEN-233; 08-29-1985)
(State Only)
Subpoenas from courts or quasi-judicial tribunals (such as
workmen's compensation boards, and regulatory commissions) for the production
of 20 Department or Foreign Service records or testimony of Departmental or
Foreign Service employees arising out of their official duties will normally be
addressed to the Secretary of State, to the custodian of records if records are
involved, or to an individual officer who is supposed to have knowledge of the
matter at issue.
2 FAM 511.1 Handling of Service of
Legal Process
(CT:GEN-529; 10-09-2018)
(State Only)
a. Officers who are served with subpoenas for records
or testimony involving official duties should take note of when and how and by
whom it is served and immediately inform the assistant legal adviser who advises
the interested bureau or office. Subpoenas commonly are returnable in a very
short time, so prompt action is essential. Any correspondence or conversation
with the party serving the subpoena or the party's attorney should also be
reported.
b. Under Pub. Law 93-647 (42 U.S.C. 659), remuneration
for employment by the Government is subject to garnishment or attachment for
child support, alimony, and separate maintenance obligations of employees.
Anyone receiving legal process for garnishment or attachment of remuneration of
an employment of the Department or the Foreign Service shall promptly forward
the process to the Executive Office of the Office of the Legal Adviser and
(L-H/EX), with a notation of when, how, and by whom served. L-H/EX will review
the process for legal sufficiency. If it is legally sufficient, L-H/EX will
forward the process through the Office of Civil Service Career Development and
Assignments (HR/CCA) or Office of Civil Service
Human Resource Management (HR/CSHRM), as appropriate, to M/COMP/FO,
which will determine whether adequate information has been supplied to permit
fiscal action. If not, it will be returned to L-H/EX; otherwise, the Bureau of the Comptroller and Global Financial Services
(CGFS) will initiate appropriate action. CGFS
will notify the employee or annuitant who is the subject of the
garnishment for attachment that the process has been received. The employee or
annuitant affected has the responsibility to present any defenses to the court
issuing the process.
2 FAM 511.2 The Office of the Legal
Adviser (L-H/EX)
(CT:GEN-455; 06-22-2016)
(State Only)
a. A summons and complaint is used to initiate legal
action against the Department. It is normally addressed to the officer whose
official action is the subject of the complaint. In addition to other
functions relating to service in section 2 FAM 511.1,
the Executive Office of the Office of the Legal Adviser (L-H/EX) will accept service on behalf of an
officer or former officer named as dependent on the basis of acts arising out
of his official duties. If service is made directly on the named officer, the
summons and complaint should be promptly forwarded to L-H/EX.
b. Under Rule 4 of the Federal Rules of Civil
Procedure, service may be made by first class mail. The recipient may
acknowledge service through a form enclosed. This form should not be signed
and returned without legal advice because doing so may waive procedural
defenses. However, if an acknowledgment is not made within 20 days, the
defendant may be liable for the cost of personal service. Consequently, it is
essential that L be consulted promptly.
c. In many cases, acknowledgment of service may be
made if accompanied by a caveat to the effect that no defenses under Rule 12(b)
of the Federal Rules of Civil Procedure and waived therefore.
The Office of the Legal Adviser (L-H/EX)
SA-17
600 Nineteenth Street N.W.
Washington, D.C. 20036
2 FAM 511.3 The Director General of
the Foreign Service and Director of Human
Resources (DGHR)
(CT:GEN-529; 10-09-2018)
(State Only)
Production of official records or testimony of
Departmental or Foreign Service employees on matters within the scope of their
official responsibilities, pursuant to judicial subpoena, must be specifically
authorized by the Director General of the Foreign Service and Director of Human Resources (DGHR). The
Director General shall seek the views of the Office of the Legal Adviser and
the geographic or functional office concerned before authorizing or
disapproving compliance with the subpoena. In the event either records or
testimony sought involve classified information, the security regulations in 12
FAM also apply.
2 FAM 511.4 Assistant Secretary for
Consular Affairs (CA)
(CT:GEN-233; 08-29-1985)
(State Only)
The Assistant Secretary for Consular Affairs, however, may
authorize compliance with judicial subpoenas for records or testimony involving
the official functions of the Passport Office, the Visa Office, or the Office
of Citizen Services. The Assistant Secretary also shall seek the views of the
Office of the Legal Adviser and the geographic or functional office involved
before acting on the subpoena.
2 FAM 511.5 Assistant Secretary for
Legislative and Intergovernmental Affairs (H)
(CT:GEN-455; 06-22-2016)
(State Only)
Any subpoena served on behalf of a committee of Congress,
for official records or for testimony of an employee, on matters within the
scope of their official responsibility will be brought to the attention of the
Assistant Secretary for Legislative and Intergovernmental Affairs (H), the
Office of the Legal Adviser (L), and the Under Secretary for Management (M).
No response shall be made to any Congressional subpoena except upon the
specific authorization of the Assistant Secretary for Legislative and
Intergovernmental Affairs. In the event the records or testimony sought
contain classified information, the security regulations in 12 FAM also apply.
2 FAM 512 LEGAL REPRESENTATION OF
DEPARTMENTAL EMPLOYEES BY THE DEPARTMENT OF JUSTICE
(CT:GEN-233; 08-29-1985)
(State Only)
The Department of Justice has issued guidelines (28 CFR
50.15(a)) on when and how it will represent Federal employees. This section
summarizes the pertinent guidelines and implementation by the Department of
State.
a. The Department of Justice will represent Federal
employees in civil and Congressional proceedings in which they are sued,
subpoenaed, or charged in their individual capacities, when the acts which
constitute the subject of the proceeding reasonably appear to have been
performed within the scope of their employment and if representation would
otherwise be in the interest of the United States.
b. Representation is not available in Federal criminal
proceedings. In other proceedings, if the employee is the target of a Federal
criminal investigation or a defendant in a Federal criminal case, relating to
the same subject matter for which representation is sought, no representation
by Justice Department attorneys will be provided. If the employee is a target
of an investigation concerning the matter for which that employee seeks
representation, but no decision to seek an indictment or issue any information
has been made, a private attorney may be provided to the employee at Federal
expense.
c. The Department of Justice will not represent, or
pay for the representation of any employees, if, with respect to the acts that
are the subject of the representation, an indictment or information has been
filed against them by the United States or a pending investigation of the
Department indicates that they committed a criminal offense.
d. The Department of Justice will pay for
representation by a private attorney when several employees, otherwise entitled
to representation by the Department, have sufficiently conflicting interests
which in the Department's view preclude representation of each of them by the
Department of Justice. The Department of Justice will not provide or pay for
representation where the positions taken would oppose positions maintained by
the United States itself.
e. Representation by Department of Justice attorneys
also is not available to a Federal employee whenever:
(1) The act or acts with regard to which the employee
desires representation do not reasonably appear to have been performed within
the scope of employment with the Federal Government; or
(2) It is otherwise determined by the Department of
Justice that is not in the interest of the United States to represent the
employee.
2 FAM 513 PROCEDURES
(CT:GEN-233; 08-29-1985)
(State Only)
a. When employees believe they are entitled to
representation by the Department of Justice in a proceeding, they must submit a
request for that representation, together with all process and pleadings served
upon them, to the Office of the Legal Adviser forthwith. The Office of the
Legal Adviser (unless it finds a request for representation clearly
unwarranted) shall submit to the Civil Division, Department of Justice, in a
timely manner a statement, with all supporting data as to whether the employees
were acting within the scope of their employment, together with its
recommendation as to whether representation should be provided. The
communication between employees and any individual acting as an attorney at the
State Department, with regard to the request for representation, shall be
treated as subject to the attorney-client privilege.
b. In emergency situations, the Civil Division may
initiate conditional representation after communication by telephone with the
State Department. In such cases, appropriate written data must be subsequently
provided. In addition, in view of the 20 day period for acknowledgment of
service under Rule 4 of the Federal Rules of Civil Procedure (see section 2 FAM 511.2,
paragraph b), United States attorneys are authorized to represent employees to
the limited extent of tendering legal advice concerning what response, if any,
should be given to service by first class mail. This advice should be
particularly useful for employees outside the United States, who may wish to
make direct contact to save time.
c. Upon receipt of the State Department's notification
of request for counsel, the Civil Division will determine whether the
employee's actions reasonably appear to have been performed within the scope of
employment, and whether providing representation is in the interest of the
United States. If a negative determination is made, the Civil Division will
inform the State Department and/or the employee that no representation will be
provided.
d. If conflicts exist between the legal and factual
positions of various employees in the same case which make it inappropriate for
a single attorney to represent them all, the employees may be separated into as
many groups as necessary to resolve the conflict problem and each group may be
provided with separate representation. Some situations may make it advisable
that private representation be provided to all conflicting groups and that
Justice Department attorneys be withheld so as not to prejudice particular
defendants.
e. Once undertaken, representation will continue until either
all appropriate proceedings have ended, or until any one of the foregoing basis
for declining or withdrawing from representation is found to exist, including
without limitation the basis that representation is not in the interest of the
United States. In any of the latter events, the representing Justice
Department attorney on the case will seek to withdraw but will insure to the
maximum extent possible that the employee is not prejudiced by withdrawal. Any
appeal by Justice Department attorneys against an adverse decision may only be
taken upon the discretionary approval of the Solicitor General, but employees
may pursue an appeal at their own expense.
f. Justice Department attorneys who represent
employees undertake a full and traditional attorney-client privilege. If
representation is discontinued for any reason, any incriminating information
gained by the attorney in the course of representing the employee continues to
be subject to attorney-client privilege. All legal arguments appropriate to the
employee's case will be made unless they conflict with the U.S. Government
positions. Where adequate representation requires the making of a legal
argument which conflicts with a U.S. Government position, the Justice
Department shall so advise the employee.
2 FAM 514 WITNESS FEES, TRAVEL
EXPENSES, AND SUBSISTENCE
(CT:GEN-233; 08-29-1985)
(State Only)
Reimbursement for expenses incurred by an employee giving
testimony arising out of the employee's official duties.
2 FAM 514.1 Testimony Given on Behalf
of Some Party Other Than the United States or the District of Columbia
(CT:GEN-455; 06-22-2016)
(State Only)
a. When an employee of the Department or Foreign
Service is subpoenaed in that employee's official capacity by any court,
authority, or party other than the United States or the District of Columbia
and authorized by the Department or Foreign Service to respond to the subpoena,
or assigned by the Department or Foreign Service to testify in an official
capacity or produce official records of the authority, or party other than the
United States or the District of Columbia at a judicial or quasi-judicial
proceeding, the employee should collect from the party who obtained the
subpoena, and/or from the court or authority involved, all authorized witness
fees and subsistence in connection with that testimony.
b. All amounts so collected for travel expenses and
subsistence or per diem should be reported and this report should be submitted
with the employee's voucher for reimbursement for expenses related to the
employee's testimony. The report should indicate the amount collected, from
whom collected, and the time period for which it was collected. Collected
amounts will be credited against amounts otherwise payable to the employee by
the Department or Foreign Service for travel, subsistence, or per diem in
connection with testimony.
c. All amounts collected as witness fees unrelated to
travel and subsistence or per diem for testimony given in an official capacity
on behalf of some party other than the United States or the District of
Columbia should be reported along with the employee's time and attendance
report. The report of fees should indicate the amount collected, purpose for
which collected, from whom collected, and the time period for which it was
collected. Those fees will be credited against salary otherwise payable for
the period in which testimony was given.
d. In cases where an employee of the Department or
Foreign Service gives testimony at a judicial or quasi-judicial proceeding and
is entitled to, and actually uses, court leave authorized by 5 U.S.C. 6322, the
employee should collect all authorized witness fees and report them on the time
and attendance report as described in section 2 FAM 514.1(c).
Travel, subsistence and per diem expenses received in such cases, when the
employee does not receive any equivalent expenses payments from the Department
or Foreign Service, may be collected and need not be reported to the
Department.
2 FAM 514.2 Testimony on Behalf of
the United States or the District of Columbia
(CT:GEN-455; 06-22-2016)
(State Only)
When an employee of the Department or Foreign Service is
subpoenaed or selected by the Department or Foreign Service to testify or
produce official records at a judicial proceeding on behalf of the United
States or the District of Columbia, the employee is performing official duty
and should not collect any witness fees. Travel, subsistence, and per diem
expenses in connection with the testimony should be paid, collected, reported,
and accounted for in the same manner as travel and subsistence expenses
connected with any other official business.
2 FAM 515 THROUGH 519 UNASSIGNED