of service, in writing or otherwise, although he may do so voluntarily. In most cases he should further advise the person concerned to consult legal counsel.

(2) Where process is forwarded to a commanding officer with the request that it be delivered to a person within his command, he may deliver it to the person named therein, provided such person voluntarily agrees to accept it. In such cases the commanding officer will ensure that the serviceman or civilian concerned is informed that he is not required to accept service of the process but may do so voluntarily. The commanding officer is not required to act as a process server. When the person named in the process does not voluntarily accept the process, it should be returned with a notation that the person named therein refused to accept it.

c. Service of process arising from official duties.

(1) If the service of process involves a potential claim against the Government, see sections 2021a-b and 2032. While the right to remove to Federal Court under 28 U.S.C. 1442 and 1442a requires color of office, which is considered to be more than simple scope of employment, this right must be fully explored in all situations where the outcome of the State court action may influence a claim or potential claim against the United States.

(2) Whenever a Government employee (as defined in section 2031a) is served with Federal or State court civil or criminal process or pleadings (including traffic tickets) arising from actions performed in the course of his official duties, he shall immediately deliver all process and pleadings served upon him to his commanding officer. The commanding officer shall thereupon ascertain the facts surrounding the incident and with the advice of a Navy or Marine Corps judge advocate, if one is reasonably available, take appropriate action in accordance with JAGINST 5822.2 of 2 Feb 1962, Subj: Civil suits against military or civilian personnel of the Department of the Navy resulting from the operation of motor vehicles while acting within the scope of their office or employment, and legal representation in other court proceedings. The Govern ment employee will be advised concerning his right to remove civil or criminal proceedings from State to Federal court under 28 U.S.C. 1442 and 1442a, his rights under the Federal Driver's Act (28 U.S.C. 2679B), and the contents of JAGINST 5822.2.

(3) Whenever a military member or civilian employee of the Department of the Navy is served with any process because of his official position, the Judge Advocate General shall be notified by message or telephone. This notification shall be confirmed by a letter report by the nearest appropriate command. The letter report shall include the detailed facts which give rise to the action. RCS JAG 5821-7. For lawsuits filed in the United States District Court, Washington, D.C., the Air Force has been assigned responsibility for accepting service of process for the Navy. See section 1314 for habeas corpus and section 1340 for litigation reports. In habeas corpus cases, liaison with the U.S. Attorney assigned to protect the Navy's interests will be maintained through the Judge Advocate General after the initial notification prescribed by section 1314.

d. Service of process of foreign courts.

(1) Usually, the question of the amenability of military personnel, civilian employees, and dependents of both stationed in a foreign country, to the service of process from courts of the host country will have been settled by an agreement between the United States and the foreign country concerned. (For example, in the countries of the signatory parties, amenability to service of civil process is governed by paragraphs 5(g) and 9 of Article VIII of the NATO Status of Forces Agreement, TIAS 2846.) Where service of process on a person in the Department of the Navy is attempted within the command in a country with which the United States has no agreement on this subject, advice should be sought from the Judge Advocate General. Service of process when the United States Government or one of its agencies or instrumentalities is the named defendant may involve a situation where the doctrine of sovereign immunity will allow the service of process to be returned to the court through diplomatic channels. Service of process directed to an official of the United States, on the other hand, must always be processed in accordance with the applicable international agreement or treaty, whether or not the suit involves acts performed in the course of official duties. When the report required by section 1325 is made, the Judge Advocate General will make arrangements through the Department of Justice for defense of a suit against the United States or an official acting within the scope of his official duties, or other appropriate arrangements, and will issue appropriate instructions.

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(2) Usually, persons in the Department of the Navy are not required to accept service of process outside the geographic limits of the jurisdiction of the court from which the process issued. In such cases acceptance of the service is not compulsory, but service may be voluntarily accepted in accordance with subsection c above. In exceptional cases where the United States has agreed that service of process will be accepted by persons in the Department of the Navy located outside the geographic limits of the jurisdiction of the court from which the process issued, the provisions of the agreement and of subsection a, above, will govern.

(3) Under the laws of some countries (such as Sweden), service of process is effected by the document, in original or certified copy, being handed to the person for whom the service is intended. Service is considered to have taken place even if the person refuses to accept the legal document. If a commanding officer or other officer in the military service calls the serviceman to his office and personally hands him or attempts to hand him the document, service is considered to have been effected, permitting the court to proceed to judgment. Upon receipt of foreign process with a request that it be served upon a member of his command, a commanding officer shall notify the serviceman of the fact that a particular foreign court is attempting to serve process upon him and inform him that he may ignore the process or come to the office and receive it. If the serviceman chooses to ignore the service, the commanding officer will return the document to the embassy or consulate of the foreign country with the notation that the serviceman had been notified that the document was in the office of the commanding officer, but that he chose to ignore it, and that no physical offer of service had been made. The commanding officer will keep the Judge Advocate General advised of all requests for service of process from a foreign court and the details thereof.

e. Leave or liberty to be granted persons served with process. In those cases where personnel either are served with process, or voluntarily accept service of process, the commanding officer normally will grant leave or liberty to the person served in order to permit him to comply with the process; provided, such absence will not prejudice the best interests of the naval service.

f. Report where service is not allowed. Where service of process is not permitted, a report of such refusal and the reasons therefor shall be forwarded by speed letter (telephone if conditions warrant) to the Secretary of the Navy (Judge Advocate General). RCS JAG 5821-8.

1321 PERSONNEL SUBPOENAED AS WITNESSES IN STATE OR LOCAL COURTS

Where military personnel or civilian employees are subpoenaed to appear as witnesses in State or local courts, and are served in the manner described under conditions set forth in section 1320, the provisions of section 1320e apply. If naval personnel are requested to appear as witnesses in State or local courts where the interests of the Federal Government are involved (e.g., Medical Care Recovery Act cases) the procedures described in section 1322a may be followed.

1322 PERSONNEL SUBPOENAED AS WITNESSES IN FEDERAL COURTS

* a. Witnesses on behalf of Federal Government. Where naval personnel or civilian employees of the Department of the Navy are required to appear as witnesses in a Federal Court to testify on behalf of the Federal Government in a case involving activities of the Department of the Navy, the Chief of Naval Personnel, the Commandant of the Marine Corps, or the Judge Advocate General with respect to civilian employees, as the case may be, will direct the activity to which the person is attached to issue temporary additional duty travel orders to the person concerned. The charges for such orders shall be borne by the activity to which the required witness is attached. Payment to witnesses will be as provided by the Joint Travel Regulations and U.S. Navy Travel Instructions. If the required witness is to appear in a case where the activities of the Department of the Navy are not involved, the Department of the Navy will be reimbursed in accordance with the procedures outlined in the Navy Comptroller Manual, section 046278.

b. Witnesses on behalf of nongovernmental par ties.

(1) Criminal actions. Where naval personnel are served with a subpoena to appear as a witness for

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the defendant in a criminal action and the fees and mileage required by Rule 17(d) of the Federal Rules of Criminal Procedure are tendered, the commanding officer is authorized to issue the person subpoenaed permissive orders authorizing attendance at the trial at no expense to the Government, unless the public interest would be seriously prejudiced by his absence. In this case a full report of the circumstances will be made to the Judge Advocate General. In those cases where fees and mileage are not tendered as required by Rule 17(d) of the Federal Rules of Criminal Procedure, but the person subponaed still desires to attend, the commanding officer is authorized to issue permissive orders at no cost to the Government. However, such persons should be advised that an agreement as to reimbursement for any expenses incident to travel, lodging, and subsistence should be effected with the party desiring their attendance and that no reimbursement should be expected from the Government.

(2) Civil actions. Where naval personnel are served with a subpoena to appear as a witness on the behalf of a non-governmental party in a civil action brought in a Federal court, the provisions of section 1320 apply.

1323 NAVAL PRISONERS AS WITNESSES

OR PARTIES IN CIVIL COURTS

a. Criminal actions. In those instances where the Federal, State, or Territorial authorities desire the attendance of a naval prisoner as a witness in a criminal case, a request for such person's attendance should be submitted to the Secretary of the Navy (Judge Advocate General). Upon receipt of such a request, authority will be given, in a proper case, for the production of the requested naval prisoner in court without resort being had to a writ of habeas corpus ad testificandum (a writ which requires the production of a prisoner to testify before a court of competent jurisdiction).

b. Civil actions. The Department of the Navy will not authorize the attendance of a naval prisoner in a Federal, State, or Territorial court, either as a party or as a witness, in private litigation pending before such court, because in these the court may grant a postponement or a continuance of the trail. The deposition of a naval prisoner may be taken in such a case subject to such reasonable conditions or limitations as may be imposed by the command concerned.

1324 INTERVIEWING PERSONNEL PRELIMINARY TO CIVIL LITATION IN MATTERS PERTAINING TO OFFICIAL DUTIES

a. Request by parties in interest. Except as hereinafter limited, requests, preliminary to civil litigation, for permission to conduct an ex parte interview of persons in the Department of the Navy (enlisted, commissioned, or civilian) in matters growing out of their official duties, and requests regarding the obtaining of their statements shall be forwarded to the officer in charge of the cognizant naval legal service officer or Marine Corps Staff judge advocate, who when practicable, will make appropriate arrangements in order that all of the desired personnel may be interviewed at the same time. The interview will be by all of the counsel for the various parties in interest or by such counsel as desire to be present. Interviews of such personnel shall be conducted in the presence of an officer designated by the officer in charge of the naval legal service officer. If any of the parties in interest desire statements from the interviewed personnel, such statements shall be prepared under the direction of the designated officer. A signed copy of the statement shall be furnished (at no cost to the Government) to the person making the statment, and to the Director of the law center and to the Judge Advocate General. If the interview involves any line of inquiry which would disclose privileged matters or compromise classified material or otherwise be determental to the security interests of the United States, the assigned officer shall immediately preclude that line of inquiry.

b. Limitations. Requests mentioned in subsection a. above shall not be granted where the United States is a party in any related litigation or where its interests are involved, including cases where the interests of the United States or any Department thereof are represented by private counsel by reason of insurance or subrogation arrangements. In these instances, records, data, and witnesses shall be made available only to the Department of Justice or to such other U.S. Government departments, agencies or personnel requiring access thereto in the performance of their official duties.

c. Admiralty matters. Inquiries which relate to admiralty matters or to maritime litigation, whether involving naval vessels or not, shall be sent to the Office of the Judge Advocate General (Deputy Assistant Judge Advocate General (Admiralty)). Examples of admiralty matters are set forth in chapter 12.

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1325 SUITS AGAINST THE UNITED STATES

a. General. The primary responsibility for representing the United States in any litigation in which the United States has an interest rests in the Attorney General. For the purpose of affording the Attorney General timely notice of legal actions arising out of operations of the Naval Establishment, the Judge Advocate General and the General Counsel, within the areas of their respective jurisdictions, maintain close liaison with the Department of Justice. Reports are required of all suits against the United States, or its prime contractors or subcontractors on contracts under which the Government may be obligated to make reimbursement or in cases where the United States is, in legal effect, the defendant.

b. Reports to the Judge Advocate General. When any command is apprised, by service of process or otherwise, of the commencement of any civil litigation or legal proceedings, including those involving nonappropriated-fund activities, other than suits within the jurisdiction of the General Counsel as set forth in subsection c below, which arise out of the operations of the Naval Establishment or are otherwise of substantial interest to it, such command will report to the Judge Advocate General, Navy Department, Washington, D. C., by the most expeditious means, using message, telephone, or letter, as may be warranted by the circumstances. RCS JAG 5821-9. This category of civil litigation and other legal proceedings includes, but is not limited to, any legal proceeding involving the United States as a party and arising out of operations of the Department of the Navy; proceedings against any person subject to military law or any official or employee of the Department of the Navy in connection with his public duties; and proceedings in which attachment of Government funds or other property is sought. The report shall contain as much of the following information as may be pertinent:

(1) Name of parties to the proceeding.

(2) Nature of the action.

(3) Correct designation of the tribunal in which the proceeding is brought.

(4) Docket number of case, if available.

(5) Names of person or persons on whom service was made, method of service, and dates.

(6) Explanation of Government's interest in the proceeding.

(7) Date by which the defendant must plead or otherwise respond.

(8) Nature of the principal defense, if known.

(9) Status of the defendant as being a Government officer, employee, agent, contractor, nonappropriated-fund activity employee, etc.

(10) Amount claimed, or other relief sought.

(11) If a contractor is involved, the contract number, and information as to whether the contractor desires or is willing to permit the suit to be defended by a United States Attorney.

(12) Data as to whether the subject matter of the suit is covered by insurance; if so, whether covered to the amount claimed, and whether the insurance carrier will accept full responsibility for defense of the suit.

(13) If action is brought in a foreign country, a recommendation as to qualified local attorneys, English-speaking if possible, available for retention to defend the interests of the United States. Normally, the names of such attorneys should be from a list maintained by the U.S. Embassy or Consulate.

(14) Such other available information as may be necessary for a full understanding of the action and to enable the Government to prepare a defense.

c. Reports to the General Counsel RCS JAG 5821-10. A report as required above shall be made to the General Counsel, Navy Department, Washington, D.C., rather than to the Judge Advocate General, in all cases in the field of business and commercial law, including cases relating to:

(1) The acquisition, custody, management, transportation, taxation, disposition of real and personal property, and the procurement of services, including the fiscal, budgetary, and accounting aspects thereof; excepting, however, tort claims and admiralty claims arising independently of contract, matters concerning nonappropriated-fund activities, including unfunded instrumentalities (such as flying clubs), and matters related to the Naval Petroleum Reserves:

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1330 PRODUCTION OF OFFICIAL RECORDS IN RESPONSE TO COURT ORDER

*a. General. Where unclassified naval records are desired by or on behalf of litigants, the parties will be informed that the records desired, or certified copies thereof, may be obtained by forwarding to the Secretary of the Navy, Navy Department, Washington, D.C., or other custodian of the records, a court order calling for the particular records desired or copies thereof. Compliance with such court order will be effected by transmitting certified copies of the records to the clerk of the court out of which the process issues. See the provisions in SECNAVINST 5211.5 series which set forth the additional requirement that reasonable efforts be made to notify all individuals to whom the record pertains of (1) the disclosure, and (2) the nature of the information provided, when the court order has become a matter of public record and the record is contained in a "system of records" as defined in SECNAVINST 5211.5 series. If an original record is produced by a naval custodian, it will not be removed from the custody of the person producing it, but copies may be placed in evidence. Upon written request of all parties in interest or their respective attorneys, records which would be produced in response to a court order as set forth above may be furnished without court order when it is not in a "system of records" as defined by the Privacy Act (5 U.S.C. § 552a), except as noted in subsection b and c below. In determining whether or not a record not contained in a "system of records" will be furnished in response to a written request of all parties in interest or their attorneys, consideration shall be given to the provisions of SECNAVINST 5720.42 series. If the record is in a "system of records," it may be produced upon written request of all the parties in interest or their attorneys in the absence of a court order only if the individuals to whom the record pertains give written consent to the production or if the production is otherwise authorized under the Privacy Act and SECNAVINST 5211.5 series. Whenever compliance with a court order for production of Department of the Navy records is deemed inappropriate for any reason, such as when they contain privileged or classified information, the records and subpoena may be forwarded to the Secretary of the Navy (Judge Advocate General) for appropriate action, and the parties to the suit so notified.

*b. Records in the custody of National Personnel Records Center. Court orders, or documents in the nature of subpoenas duces tecum if they have the legal effect of court orders, demanding information from, or the production of, service or medical records in the custody of the National Personnel Records Center involving former (deceased or discharged) Navy and Marine Corps personnel shall be served. upon the General Services Administration, 9700 Page Boulevard, St. Louis, Missouri 63132, rather than the Department of the Navy. In the following situations, the request shall be forwarded to the Secretary of the Navy (Judge Advocate General).

(1) When the United States (Department of the Navy) is one of the litigants.

(2) When the case involves a person or persons who are or have been senior officers within the Department of the Navy; and

(3) In other cases considered to be of special significance to the Judge Advocate General or the Secretary of the Navy.

c. Exceptions. Where not in conflict with the foregoing restrictions relative to confidential matter, the production in Federal, State, Territorial, or local courts of evidentiary material from investigations conducted pursuant to this Manual, and the service, employment, pay or medical records (including medical records of dependents) of persons in the naval service is authorized upon receipt of a court order, withou procuring specific authority from the Secretary of the Navy. Where travel is involved, it must be without expense to the Government.

*d. Medical and other records of civilian employees. Production of medical certificates or other medical report concerning civilian employees is controlled by the provisions of Executive Order 10561, 19 F.R. 5963, as implemented by Federal Personnel Manual, chapter 294, and chapter 339.1-4. Records of civilian employees other than medical records may be produced upon receipt of a court order without procuring specific authority from the Secretary of the Navy, provided there is not involved any classified or otherwise confidential material such as loyalty or security records. The disclosure of

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