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Responsibilities - 14135_295
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Pretrial  Interviews  Concerning  Matters Arising Out of Official Duties
service, it should be returned with a notation that the named person has refused to accept it. Arising from official duties. Whenever a service member or civilian employee is served with federal or state court civil or criminal process arising from ac- tivities performed in the course of official duties, the CO  should  be  notified  and  provided  copies  of  the process and pleadings. After the pertinent facts are learned, notify JAG (Code 14) immediately by tele- phone and send the pleadings and process to the of- fice. A military member may remove civil or criminal prosecutions  from  state  to  federal  court  when  the action  is  done  under  color  of  office  or  when  authority is claimed under a law of the United States respecting the  armed  forces.  The  purpose  of  this  action  is  to assure a federal forum for cases when service mem- bers must raise defense arising out of their official duties. If a federal employee is sued in his or her individ- ual capacity, that employee may be represented by Justice Department attorneys in state criminal pro- ceedings and in civil and congressional proceedings. When an employee believes he or she is entitled to representation,    a  request—together  with  pleadings and  process—must  be  submitted  to  JAG  via  the  indi- vidual’s  CO.  The  CO  will  endorse  the  request  and submit all pertinent data as to whether the employee was acting within the scope of employment at the time of  the  incident  out  of  which  the  suit  arose.  If  the Justice Department determines that the employee’s actions  reasonably  appear  to  have  been  performed within  the  scope  of  employment  and  that  repre- sentation is in the interest of the United States, repre- sentation  will  be  provided. Service Not Allowed In any case where the CO refuses to allow service or  process,  a  report  is  made  to  SECNAV  (JAG)  as expeditiously  as  the  circumstances  allow  or  warrant. Leave/Liberty In  those  cases  where  personnel  either  are  served with process or voluntarily accept service of process, leave or liberty should be granted to comply with the process, unless it will prejudice the best interests of the naval service. 10-10 SUBPOENAS A subpoena is a court order requiring a person to testify in either a civil or criminal case as a witness. The  same  considerations  exist  in  this  instance  as  ap- ply in the case of service of process, except for special rules where testimony is required on behalf of the . United States in criminal and civil actions, or where the witness is a prisoner. Witness on Behalf of the Federal Government Where DON interests are involved and depart- mental personnel are required to testify for the Navy, the Chief of Naval Personnel or Commandant, Marine Corps directs the witness’ activity to issue TAD or- ders.  Costs  of  such  orders  are  borne  by  that  same command.  If  DON  interests  are  not  involved,  the Navy  is  reimbursed  by  the  concerned  federal  agency. Witness on Behalf of Accused in Federal Court When naval personnel are served with a subpoena and the appropriate fees and mileage are tendered, issue no-cost permissive orders unless the public in- terest  would  be  seriously  prejudiced  by  the  member’s absence  from  the  command. Witness on Behalf of Party to Civil Action State Criminal Action With No Federal Government  Interest or The CO normally grants leave or liberty to the person, provided such absence will not prejudice the best interests of the naval service. If the member is being called as a witness for a nongovernmental party only  because  of  performance  of  official  duties,  the  CO is  authorized  to  issue  the  member  permissive  orders  at no  expense  to  the  government. Witness Is a Prisoner Criminal cases.   SECNAV  (JAG)  must  be  con- tacted for permission that normally will be granted. Failure to produce the prisoner as a witness may result in a court order requiring such production. Civil action. The member cannot be released to appear regardless of whether it is a federal or state court making the request. A deposition may be taken at the place of confinement subject to reasonable con- ditions  and  limitations  imposed  by  the  prisoner’s command.

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