Directive 116.2 

2/7/94 

 APPEARANCE IN JUDICIAL OR ADMINISTRATIVE 

 PROCEEDINGS 

I. A. This Directive: 

PURPOSE 

 1. States the procedures for the appearance of 

 employees as witnesses in judicial or 

 administrative proceedings. 

 2. Prescribes the collection and disposition 

 requirements of witness fees, and explains when 

 travel expenses for employees who testify can be 

 paid (see Attachment 1). 

 3. Explains the leave status of employees 

CH-1 who testify in an official capacity (see 

2/21/95 Attachment l). 

 4. Explains the leave status of employees who 

 testify in a purely personal capacity or where 

 testimony does not rise out of, or relate to, 

CH-1 employment with the U.S. Department of Agriculture 

2/21/95 (USDA) (see Attachment 1). 

II. This Directive replaces AMS Directive 116.2, 

REPLACEMENT Appearance in Judicial or Administrative 

HIGHLIGHTS Proceedings, dated 7/7/89. Changes are marked with 

 asterisks. 

III. A. Judicial Proceeding. Any case or controversy 

DEFINITIONS pending before any Federal, State, or local court. 

 B. Administrative Proceeding. Any proceeding pending 

 before any Federal, State, or local agency and 

 undertaken for the purpose of the issuance of any 

 regulations, orders, licenses, permits, or other rulings. 

 C. Appearance. Testimony or production of documents 

 which arise out of an employee's official duties with 

 USDA or which relate to his/her employment with USDA. 

 For the purpose of this Directive, an appearance 

 also includes a deposition or an interrogatory. 

 D. Witness Fees. The amount of money paid to a witness 

 as compensation for attendance at a judicial or 

 administrative proceeding. 

 E. Travel Expenses. The amount paid to a witness for 

 transportation, lodging, meals, and other related 

 miscellaneous expenses. 

 F. * - Valid Summons, Subpoena, or Other Compulsory 

 Process. An order that is served properly and within 

 the legal authority and jurisdictional boundaries of 

 the court, administrative agency, or official that 

 issued it. - * 

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IV. * - The authority to approve or disapprove the 

DELEGA- appearance of an employee as a witness who is 

TION OF appearing in a judicial or administrative 

AUTHORITY proceeding on behalf of a party other than the United 

 States is maintained by the Administrator and the 

 Office of the General Counsel(OGC). Delegation of 

 this authority is not permitted. - * 

V. A. Appearance on Behalf of the United States. An 

OFFICIAL employee may appear as a witness in any judicial 

TESTIMONY or administrative proceeding on behalf of the United 

 States without the issuance of a valid summons, 

 subpoena, or other compulsory process. * - Employees 

 should obtain permission for such an appearance from 

 their immediate supervisor, unless the Agency or OGC 

 has issued other instructions. - * 

 B. Appearance as a Witness on Behalf of a Party Other 

 Than the United States Where the United States is Not 

 a Party. 

 1. * - An employee may appear as a witness in 

 any judicial or administrative proceeding on 

 behalf of a party other than the United States 

 when that appearance has been ordered by 

 service of a valid summons, subpoena, or other 

 compulsory process issued by a court, 

 administrative agency, or official authorized 

 to compel the appearance only if the employee 

 has obtained approval from the Administrator, 

 with concurrence from OGC. 

 2. An employee who is requested to appear as 

 a witness in any judicial or administrative 

 proceeding on behalf of a party other than the 

 United States without the service of a valid 

 summons, subpoena, or other compulsory process 

 may appear only if such appearance has been 

 authorized by the Administrator, and approved 

CH-1 by the Assistant Secretary for Marketing and 

2/21/95 Regulatory Programs, and by OGC. - * 

 C. Appearance as a Witness on Behalf of a Party Other 

 Than the United States Where the United States is a Party. 

 1. * - An employee who is served with a valid 

 summons, subpoena, or other compulsory process 

 demanding that he/she appear in a judicial or 

 administrative proceeding, or produce records, 

 shall promptly notify the Administrator and OGC 

 through supervisory channels of the existence 

 and nature of the order compelling his/her 

 appearance, or of the document demanding his/her 

 appearance. 

 2. An employee who is requested to appear as 

 a witness or produce records in any judicial or 

 administrative proceeding on behalf of any party 

 other than the United States without the service 

 of a valid summons, subpoena, or other compulsory 

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 process, may appear only if such appearance has 

 been authorized by a representative of the 

 Department of Justice, the United States 

 Attorney, or other counsel who is representing 

 the United States. - * 

 D. Procedures for Obtaining Clearance To Testify in an 

 Official Capacity. 

 1. An employee contacted by a representative of 

 a party, before or during involvement in a 

 judicial or administrative proceeding, because 

 of employment in the Agency, shall immediately 

 notify his/her supervisor of the requested 

 meeting, statement, or appearance, and provide 

 the following information: 

 a. The name of the attorney or personal 

 representative, party or parties involved, 

 the court, the status of the case, and 

 the subject matter of the case. 

 b. The nature of the contact sought 

 (i.e., an informal meeting, a statement, 

 pretrial deposition, appearance in 

 a proceeding, etc.). 

 c. Whether a subpoena has been or is 

 expected to be issued by a court and, 

 if so, the name of the court. 

 d. The nature of testimony or documents 

 requested. 

 e. The time, date, and place proposed 

 for further contact between the employee 

 and the attorney or personal 

 representative. 

 2. A supervisor who is advised by an employee 

 of his/her pending involvement in a judicial or 

 administrative proceeding shall immediately notify 

 the Division Director, through the normal chain of 

 command. 

 3. The Division Director shall: 

 a. Notify the Administrator immediately. 

 b. Notify and consult with OGC. 

 c. Arrange for counsel through OGC, if 

 necessary, for an employee who is asked 

 to make a statement, produce documents, 

 testify, or otherwise appear as a witness 

 in any proceeding on behalf of the United 

 States. 

 d. Obtain the Administrator's 

 determination on whether the 

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 appearance/participation is approved 

 or disapproved. 

 E. Employee Responsibility Following Official Testimony. 

 After appearance in an official capacity as a witness in 

 a proceeding, excluding grand jury proceedings, and unless 

 prohibited by the court, an employee shall provide the 

 following information, if requested by the supervisor: 

 1. Names of parties involved. 

 2. Matter in suit. 

 3. Nature of the testimony given. 

 4. Name of the court, body, or official to 

 whom testimony was given. 

 5. Date and place of appearance. 

 6. Nature of any record or material produced 

 or disclosed. 

 F. Disposition of Fees. An employee who attends a 

 judicial or administrative proceeding on behalf of the 

 United States is not entitled to receive fees for such 

 attendance. Fees collected when an employee appears, 

 in his official capacity, on behalf of a party other 

 than the United States, must be remitted to the 

 employing USDA agency. 

 1. The employee shall forward to the supervisor 

 or officer in charge, a check or money order in 

 the amount received for witness service, made 

 payable to the Agricultural Marketing 

 Service or USDA. 

 2. The supervisor or officer in charge shall 

 prepare Form AMS-631, Check Transmittal, in 

 accordance with instructions on the form. (For 

 further information on Form AMS-631, contact the 

 Fiscal Operations and Systems Branch, Financial 

 Management Division.) 

VI. A. Employees Testifying in a Non-official Capacity. 

 Judicial or administrative proceedings not covered 

APPEARANCE IN in Section V., above, include: 

A NONOFFICIAL 1. Proceedings in which the State or local 

CAPACITY government is a party, and the employee is 

 providing expert witness testimony on its 

 behalf, but not in an official capacity. 

 

 2. Involvement in private litigation. 

 Employees should make an effort to avoid 

 expert witness testimony in order to avoid 

 the appearance of Agency employees favoring one 

 litigant over another; however, an employee 

 served with a subpoena must appear or be held 

 in contempt of court. 

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 B. Procedures for Obtaining Clearance To Testify in a 

 Non-official Capacity. 

 1. An employee must obtain official clearance 

 if his/her expert witness testimony will involve 

 the use of information secured as the result of 

 employment in the Department (see Section V.D.1.- 

 3.). 

 2. An employee need not obtain official 

 clearance to appear if the testimony will not 

 use information received as a result of 

 employment in USDA; however, the employee must 

 secure the appropriate leave approval (see 

 Attachment 1). 

VII. Information concerning leave, fee retention, and 

LEAVE AN travel expenses is contained in Attachment 1. (For 

TRAVEL specifics, see AMS Directives 305.2, Leave; and 467.6, 

 Mileage Allowances for Use of Privately Owned Vehicles; 

 and AMS Handbook 402, Travel Regulations Handbook.) 

VIII. A. An employee who is directed by a court, body, or 

DISCLO- official to disclose any record or material 

SURE OF classified "For Official Use Only," or any record or 

CERTAIN material that has not been released for publication, 

TYPES OF shall decline until permission is granted by the 

MATERIAL appropriate Division Director. If permission is not 

FORBIDDEN granted, the employee shall notify the court, body, or 

 official. 

 B. The Office of Inspector General must determine 

 whether to release any report it has issued. 

 C. OGC and the Department of Justice, if applicable, 

 must concur in the release of any information. 

 L. P. Massaro 

 Deputy Administrator, Management 

 Attachment 

Distribution: ML-8 

Responsible Office: MRP-HR 

 

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