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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.
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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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