[Federal Register Volume 59, Number 29 (Friday, February 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3288]
[[Page Unknown]]
[Federal Register: February 11, 1994]
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DEPARTMENT OF VETERANS AFFAIRS
Office of the Secretary
38 CFR Part 14
RIN 2900-AE76
Testimony of Department Personnel and Production of Department
Records in Legal Proceedings
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is establishing
procedures that must be followed when VA personnel, as defined in the
rules, are to provide testimony or produce records in legal
proceedings. These procedures are necessary for reasons including to
ensure more efficient use of VA resources in meeting the Department's
mission (VA attorneys and employees currently spend a considerable
amount of time responding to requests or demands for VA documents or
testimony by VA personnel), to minimize the possibility of involving VA
in controversial issues not related to its mission, to maintain the
impartiality of VA among persons and entities involved in disputes in
which the United States does not have an interest, to protect
sensitive, confidential information and the deliberative processes of
VA, and to enhance VA's ability to respond to such requests.
EFFECTIVE DATE: March 14, 1994.
FOR FURTHER INFORMATION CONTACT: Questions concerning the application
of the rules to the production of Department records should be directed
to: Jeffrey C. Corzatt, Staff Attorney (024H2), Office of General
Counsel, Department of Veterans Affairs, 810 Vermont Ave., NW.,
Washington, DC 20420, (202) 633-7240. Questions concerning the
application of the rules to the testimony of Department personnel
should be directed to: Joseph M. Vallowe, Staff Attorney (023K), Office
of General Counsel, Department of Veterans Affairs, 810 Vermont Ave.,
NW., Washington, DC 20420, (202) 633-7186.
SUPPLEMENTARY INFORMATION:
Background
On July 22, 1993, the Department of Veterans Affairs published a
notice of proposed rulemaking (NPRM) (58 FR 39174, July 22, 1993) to
promulgate regulations at 38 CFR part 14 establishing procedures
governing the appearance of VA personnel, as witnesses in order to
testify or produce official documents in legal proceedings, in response
to requests or demands for such documents or testimony. Interested
parties were invited to submit written comments on or before August 23,
1993. Three comments were received.
As VA noted in its NPRM, private litigants are requesting or
demanding the production of VA records or testimony by VA personnel or
both in a large and apparently increasing number of cases. VA has a
large hospital and benefits delivery system serving millions of
veterans and their dependents. Further, VA participates in a wide range
of activities, such as medical research, that benefits not only our
veteran population, but also the general public. All of these
activities generate records that contain information concerning
individuals or issues of local or national significance. These
documents and our personnel's expertise are being sought more often for
use in legal proceedings in which the United States is neither involved
nor has an interest. Responding to these requests and demands for
documents and for testimony can be burdensome and time consuming. When
employees are required to testify in depositions, hearings or trials
that are brought for private purposes, employees are taken away from
their official duties. Often these demands or requests are made on very
short notice.
The final rules establish new procedural requirements that private
litigants must meet before VA would produce documents or make an
employee available to testify in a private legal or administrative
proceeding. These procedures are not intended to inflict an unnecessary
burden on private litigants. Rather, VA's goals are to conserve VA
resources, to minimize the possibility of involving VA in controversial
issues not related to its mission, to maintain the Department's
impartiality among private litigants, to protect the confidentiality of
VA's deliberative processes, and to enhance VA's ability to respond
more efficiently to requests and demands for records and testimony.
As noted in the NPRM, the legal proceedings covered by the final
rule are any administrative or judicial activities traditionally
conducted within the executive or judicial branches of Federal, state,
local, or foreign governmental entities in which the United States: (i)
Is not a party; (ii) is not represented; (iii) does not have a direct
and substantial interest; and (iv) is not providing representation to
any individual or entity that is a party.
The proposed rules do not cover activities that are not legal
proceedings, such as Congressional requests for records or testimony,
or requests for records under the Freedom of Information Act, 5 U.S.C.
552, or under the Privacy Act, 5 U.S.C. 552a. The final rules do not
infringe upon or displace responsibilities committed to the Department
of Justice in conducting litigation on behalf of the United States.
The final rules do not remove the need to comply with any
applicable confidentiality provisions, such as the Privacy Act, or 38
U.S.C. 7332, and their implementing regulations before there is legal
authority to release records or provide testimony pursuant to a request
or demand covered by these rules. In fact, if the requirements of those
confidentiality statutes and the implementing regulations are not met,
records or testimony cannot be provided even where the requirements of
these regulations are met.
As stated in the NPRM, the rules address VA's concern over the need
to conserve official personnel resources for the performance of the
agency's statutory duties while at the same time attempting to
accommodate legitimate requests or demands for official records or
testimony to the extent possible. Additionally, there is a need for
uniformity within the VA system in our responses to these requests or
demands.
If a party fails to follow the Department's procedures or if VA
determines that it will not comply with a demand, VA may move to quash
the demand. If a response to a demand is required before the court
rules on the motion to quash and the court fails to stay the demand,
the employee would appear with agency counsel at the time and place
stated in the demand, produce a copy of these regulations, and
respectfully decline to testify or produce any documents. If the court
orders the employee's testimony, VA counsel may permit an exception
under Sec. 14.807(e), or, consistent with long-standing case law,
direct the employee not to testify. For example, VA counsel might
permit the employee to give factual testimony if permission would have
been granted had the party seeking the testimony followed the
procedures set forth in these rules. This would prevent a miscarriage
of justice by not subjecting the employee to a contempt charge. In
appropriate circumstances, agency counsel could still appeal the denial
of the motion to quash.
The VA's new rules provide that VA employees generally would not be
permitted to testify as an expert or opinion witness concerning
official VA information, subjects or activities at a hearing or trial
in legal proceedings between private litigants. They would only be
allowed to testify as to facts within their personal knowledge in these
proceedings under limited circumstances.
The Department's new rules do not apply to situations in which an
employee, although on official duty, observes facts regarding matters
that do not arise out of his or her official duties. For example, while
driving a government vehicle on agency business, a VA employee
witnesses an automobile accident. The rules would not govern efforts to
obtain the employee's testimony as to what the employee saw.
As stated in the NPRM, the rule does not interfere with the rights
of VA personnel as private citizens or the rights of veterans and other
private parties to invoke the powers of the courts.
Discussion of Comments
Two comments were from veterans service organizations and one was
from a VA employee. These comments are discussed below.
One commenter suggested that the regulations specifically state
that they do not cover the production of witnesses and documents in the
regular business and proceedings of the VA, that is, in administrative
or judicial proceedings involving programs and laws administered by VA.
It appears that the commenter was concerned about the rules' potential
application to such VA activities as benefits adjudication proceedings
in VA's Regional Offices or before the Board of Veterans Appeals, or in
litigation before the Court of Veterans Appeals. In these situations,
VA either would be a party to the proceedings or would have a direct
and substantial interest in them. As explained in the preamble to the
NPRM, under the terms of the regulations, they would not apply to
either type of proceeding. However, so that there is no doubt on the
matter, VA has modified the regulations to state expressly that they do
not apply to proceedings involving a claim or dispute as to the rights
of a beneficiary or obligations or liabilities of the United States
under any law or program administered by the Department of Veterans
Affairs.
The same commenter also suggested that in addition to mentioning
that the regulations do not apply when the Department and the United
States is a party to the proceedings, the regulations should also
mention that they do not apply when the Secretary of Veterans Affairs
is a party in his or her official capacity. The Department accepts this
suggestion and the regulations now do not apply when the Secretary of
Veterans Affairs is a party to the proceedings.
Another commenter suggested that the regulations specify that they
do not apply to requests by a veteran or that veteran's representative
for access to the veteran's records for use in an administrative or
judicial claim for benefits administered by the Department of Veterans
Affairs. The commenter was concerned that the proposed regulations
would supplant current VA procedures for individuals and their
representatives to obtain access to the veterans' claims records in
order to pursue their claims. The VA accepts this suggestion.
The same commenter also suggested that the regulations provide that
they apply to copies of VA records in the possession of veterans
service organizations in order to control the release of these records.
Historically, VA has taken the legal position that once records have
been obtained by a veterans service organization pursuant to a properly
executed power of attorney or consent, the copies obtained by the
service organization generally are no longer subject to control by VA.
Consequently, VA cannot extend the reach of these regulations to copies
of a veteran's records in the possession of a veterans service
organization.
The third commenter was concerned about the impact the proposed
regulations would have upon the production of VA records in proceedings
in the Republic of the Philippines which are already governed by
Department of State procedures. It was not the intent of these
regulations to change or replace existing Department of State
procedures governing the production of records in legal proceedings in
any foreign jurisdiction, including the Republic of the Philippines.
Accordingly, the VA has modified the regulations to state specifically
that they do not supplant Department of State procedures governing the
production of records or witnesses in response to requests or demands
in foreign legal proceedings.
Regulatory Flexibility Act
The Secretary of Veterans Affairs has certified that these proposed
rules will not have a significant economic impact on a substantial
number of small entities as they are defined in the Regulatory
Flexibility Act, 5 U.S.C. 601-612. Pursuant to 5 U.S.C. 605(b), the
regulations, therefore, are exempt from the initial and final
regulatory flexibility analyses requirements of sections 603 and 604.
This certification can be made because the rules affect the conduct
of VA activities and actions of VA personnel. They will have no
significant economic impact on small entities, i.e., small businesses,
small private and nonprofit organizations and small governmental
jurisdictions.
There are no Catalog of Federal Domestic Assistance numbers for
this program.
List of Subjects in 38 CFR Part 14
Government employees, Lawyers, Legal services, Veterans.
Jesse Brown,
Secretary of Veterans Affairs.
In Consideration of the foregoing, the Department of Veterans
Affairs amends 38 CFR Part 14, Legal Services, General Counsel to
include the following:
PART 14--LEGAL SERVICES, GENERAL COUNSEL
1. The authority citation for part 14 is revised to read as
follows:
Authority: 5 U.S.C. 301, 38 U.S.C. 501(a), 5502, 5902-5905,
unless otherwise noted.
2. In part 14, Secs. 14.800 through 14.810 and an undesignated
center heading prior to Sec. 14.800 are added to read as follows:
Testimony of Department Personnel and Production of Department Records
in Legal Proceedings
Sec.
14.800 Purpose.
14.801 Applicability.
14.802 Definitions.
14.803 Policy.
14.804 Factors to consider.
14.805 Contents of a demand or request.
14.806 Scope of testimony or production.
14.807 Procedure when demand or request is made.
14.808 Expert or opinion testimony.
14.809 Demands or requests in legal proceedings for records
protected by confidentiality statutes.
14.810 Fees.
Testimony of Department Personnel and Production of Department
Records in Legal Proceedings
Sec. 14.800 Purpose.
Sections 14.800 through 14.810 establish policy, assign
responsibilities and prescribe procedures with respect to:
(a) The production or disclosure of official information or records
of the Department of Veterans Affairs (VA); and
(b) The testimony of present or former VA personnel relating to any
official information acquired by any individual as part of that
individual's performance of official duties, or by virtue of that
individual's official status, in federal, state or other legal
proceedings covered by these regulations.
(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301.)
Sec. 14.801 Applicability.
(a) Sections 14.800 through 14.810 apply to:
(1) Contractors and subcontractors which undertake a VA activity or
maintain VA records when the contract covering their actions provides
that these regulations apply, as well as the personnel of contractors
and subcontractors.
(2) All components of the Department, including Canteen Service,
the Office of Inspector General, and all staff offices, services and
administrations, and their personnel.
(b) Sections 14.800 through 14.810 do not apply to:
(1) Testimony or records provided in accordance with Office of
Personnel Management regulations implementing 5 U.S.C. 6322.
(2)(i) Legal proceedings in which the Department of Veterans
Affairs, the Secretary of Veterans Affairs or the United States is a
party, is represented or has a direct and substantial interest; or
(ii) Legal proceedings in which an individual or entity is a party
for whom the United States is providing representation.
(3) Legal proceedings in which VA personnel are to testify while in
leave or off-duty status as to matters which are purely personal and
that do not arise out of, or relate in any way to, the personnel's
official duties or to the functions and activities of the VA or the
United States.
(4) Official comments on matters in legal proceedings, where
appropriate.
(5) Disclosures, in the absence of a request or demand, of
information or records by VA components, particularly the Office of
Inspector General, to federal, state, local and foreign law enforcement
or regulatory agencies.
(6) Congressional demands or requests for testimony or documents.
(7) Requests for, and release of, records under the Freedom of
Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a.
(8) Disclosures in child support and alimony proceedings under the
authority of 42 U.S.C. 659 and regulations promulgated by the Office of
Personnel Management implementing that section.
(9) Legal proceedings before or involving the VA concerning a claim
or dispute as to the rights of a beneficiary or obligations or
liabilities of the United States under any law or program administered
by the Department of Veterans Affairs.
(10) Requests by a veteran or that veteran's representative for
access to the veteran's records for use in an administrative or
judicial claim for benefits administered by the Department of Veterans
Affairs.
(11) Foreign legal proceedings covered by Department of State
procedures governing the production of records or witnesses in response
to requests or demands in connection with foreign legal proceedings.
(c) Sections 14.800 through 14.810 are not intended to, and do not:
(1) Waive the sovereign immunity of the United States;
(2) Infringe upon or displace the responsibilities committed to the
Department of Justice in conducting litigation on behalf of the United
States in appropriate cases;
(3) Remove the need for the Department to comply with any
applicable legal confidentiality provisions, such as the Privacy Act,
before having the legal authority to make any disclosure or providing
any testimony under these regulations. (Sections 14.800 through 14.810
do not give VA disclosure authority under applicable confidentiality
statutes; absent disclosure authority granted by those statutes,
information and records subject to those laws may not be disclosed, or
testimony given as to them under the procedures established in these
regulations); or
(4) Preclude treating any written request for agency records that
is not in the nature of a request or demand related to legal
proceedings as a request under the Freedom of Information or Privacy
Acts.
(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301.)
Sec. 14.802 Definitions.
(a) Demand. Order, subpoena, or other demand of a court of
competent jurisdiction, or other specific authority or under color of
law, for the production, disclosure, or release of VA information or
records or for the appearance and testimony of VA personnel as
witnesses.
(b) Request. Any informal request, by whatever method, from a
party, a party's attorney, or any person acting on behalf of a party,
for the production of VA records or information or for the testimony of
VA personnel as witnesses, which has not been ordered by a court of
competent jurisdiction or other specific authority or under color of
law.
(c) VA personnel. All present and former officers and employees of
the VA and any other individuals who are or have been appointed by, or
subject to the supervision, jurisdiction, or control of the Secretary
of Veterans Affairs or another official of the VA, including
nonappropriated fund activity employees, and other individuals hired
through contractual agreements by or on behalf of the VA, or performing
services under such agreements for VA, such as consultants,
contractors, subcontractors, their employees and personnel. This phrase
also includes individuals who served or are serving on any advisory
committee or in any advisory capacity, whether formal or informal.
(d) Legal proceedings. All pretrial, trial, and post-trial stages
of all existing or reasonably anticipated judicial or administrative
actions, hearings, investigations, or similar proceedings before
courts, commissions, boards, or other tribunals, foreign or domestic
that are not specified in Sec. 14.801(b). This phrase includes
depositions and other pretrial proceedings, as well as responses to
formal or informal requests by attorneys or others in situations
involving legal proceedings not specified in Sec. 14.801(b).
(e) Official VA information. All information of any kind, however
stored, that is in the custody and control of VA or was acquired by VA
personnel as part of their official duties or because of their official
status.
(f) Testimony. Testimony in any form, including personal
appearances in court, depositions, recorded interviews, telephonic,
televised or videotaped testimony or any response during discovery or
similar proceedings, which response would involve more than the
production of records.
(g) VA records. All documents which are records of the Department
of Veterans Affairs for purposes of the Freedom of Information Act, 5
U.S.C. 552, regardless of storage media, including the term ``record''
as defined in 44 U.S.C. 3301, and implementing regulations.
(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301.)
Sec. 14.803. Policy.
(a) VA personnel may provide testimony or produce VA records in
legal proceedings covered by Secs. 14.800 through 14.810 only as
authorized in accordance with these regulations. In determining whether
to authorize testimony or the production of records, the determining
official will consider the effect in this case, as well as in future
cases generally, based on the factors set forth in Sec. 14.804, which
testifying or producing records not available for public disclosure
will have on the ability of the agency or VA personnel to perform their
official duties.
(b) The Department of Veterans Affairs does not seek to deny its
employees access to the courts as citizens, or in the employees'
private capacities on off-duty time.
(c) The Department of Veterans Affairs does not seek to deny the
Nation's veterans access to the courts.
(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.)
Sec. 14.804. Factors to consider.
In deciding whether to authorize the disclosure of VA records or
information or the testimony of VA personnel, VA personnel responsible
for making the decision should consider the following types of factors:
(a) The need to avoid spending the time and money of the United
States for private purposes and to conserve the time of VA personnel
for conducting their official duties concerning servicing the Nation's
veteran population;
(b) How the testimony or production of records would assist VA in
performing its statutory duties;
(c) Whether the disclosure of the records or presentation of
testimony is necessary to prevent the perpetration of fraud or other
injustice in the matter in question;
(d) Whether the demand or request is unduly burdensome or otherwise
inappropriate under the applicable court or administrative rules;
(e) Whether the testimony or production of records, including
release in camera, is appropriate or necessary under the rules of
procedure governing the case or matter in which the demand or request
arose, or under the relevant substantive law concerning privilege;
(f) Whether the testimony or production of records would violate a
statute, executive order, regulation or directive. (Where the
production of a record or testimony as to the content of a record or
about information contained in a record would violate a confidentiality
statute's prohibition against disclosure, disclosure will not be made.
Examples of such statutes are the Privacy Act, 5 U.S.C. 552a, and
sections 5701, 5705 and 7332 of title 38, United States Code.);
(g) Whether the testimony or production of records, except when in
camera and necessary to assert a claim of privilege, would reveal
information properly classified pursuant to applicable statutes or
Executive Orders;
(h) Whether the testimony would interfere with ongoing law
enforcement proceedings, compromise constitutional rights, compromise
national security interests, hamper VA or private health care research
activities, reveal sensitive patient or beneficiary information,
interfere with patient care, disclose trade secrets or similarly
confidential commercial or financial information or otherwise be
inappropriate under the circumstances.
(i) Whether such release or testimony reasonably could be expected
to result in the appearance of VA or the Federal government favoring
one litigant over another;
(j) Whether such release or testimony reasonably could be expected
to result in the appearance of VA or the Federal government endorsing
or supporting a position advocated by a party to the proceeding;
(k) The need to prevent the public's possible misconstruction of
variances between personal opinions of VA personnel and VA or Federal
policy.
(l) The need to minimize VA's possible involvement in issues
unrelated to its mission;
(m) Whether the demand or request is within the authority of the
party making it;
(n) Whether the demand or request is sufficiently specific to be
answered;
(o) Other matters or concerns presented for consideration in making
the decision.
(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.)
Sec. 14.805. Contents of a demand or request.
The request or demand for testimony or production of documents
shall set forth in, or be accompanied by, an affidavit, or if that is
not feasible, in, or accompanied by, a written statement by the party
seeking the testimony or records or by the party's attorney, a summary
of the nature and relevance of the testimony or records sought in the
legal proceedings containing sufficient information for the responsible
VA official to determine whether VA personnel should be allowed to
testify or records should be produced. Where the materials are
considered insufficient to make the determination as described in
Sec. 14.807, the responsible VA official may ask the requester to
provide additional information.
(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.)
Sec. 14.806. Scope of testimony or production.
VA personnel shall not, in response to a request or demand for
testimony or production of records in legal proceedings, comment or
testify or produce records without the prior written approval of the
responsible VA official designated in Sec. 14.807(b). VA personnel may
only testify concerning or comment upon official VA information,
subjects or activities, or produce records, that were specified in
writing, submitted to and properly approved by the responsible VA
official.
(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.)
Sec. 14.807. Procedure when demand or request is made.
(a) VA personnel upon whom a demand or request for testimony or the
production of records in connection with legal proceedings as defined
in Sec. 14.802(d) is made shall notify the head of his or her field
station, or if in Central Office, the head of the component for which
he or she works. The field station or Central Office component shall
notify the responsible VA official designated in Sec. 14.807(b).
(b) In response to a demand or request for the production of
records or the testimony of VA personnel, other than personnel in the
Office of the Inspector General (OIG), as witnesses in legal
proceedings covered by these regulations, the General Counsel, the
District Counsel, an attorney in the Office of General Counsel
designated by the General Counsel, or an attorney in the District
Counsel office designated by the District Counsel is the responsible VA
official authorized to determine whether VA personnel may be
interviewed, contacted or used as witnesses, including used as expert
witnesses, and whether VA records may be produced; and what, if any,
conditions will be imposed upon such interview, contact, testimony or
production of records. For personnel in the OIG, the Counselor to the
Inspector General or an attorney designated by the Counselor to the
Inspector General, is the responsible VA official authorized to make
the determinations provided in Sec. 14.807, and that official will keep
the General Counsel informed of such determinations for purposes of
litigation or claims of privilege.
(c) In appropriate cases, the responsible VA official shall
promptly notify the Department of Justice of the demand or request.
After consultation and coordination with the Department of Justice, as
required, and after any necessary consultation with the VA component
which employs or employed the VA personnel whose testimony is sought or
which is responsible for the maintenance of the records sought, the VA
official shall determine in writing whether the individual is required
to comply with the demand or request and shall notify the requester or
the court or other authority of the determination reached where the
determination is that VA will not comply fully with the request or
demand. The responsible VA official shall give notice of the decision
to other persons as circumstances may warrant. Oral approval may be
granted, and a record of such approval made and retained in accordance
with the procedures in Sec. 14.807(f) concerning oral requests or
demands.
(d) If, after VA personnel have received a request or demand in a
legal proceeding and have notified the responsible VA official in
accordance with this section, a response to the request or demand is
required before instructions from the responsible official are
received, the responsible official designated in paragraph (b) of this
section shall furnish the requester or the court or other authority
with a copy of Secs. 14.800 through 14.810 and any other relevant
documentation, inform the requester or the court or other authority
that the request or demand is being reviewed, and seek a stay of the
request or demand pending a final determination by the VA official
concerned.
(e) If a court of competent jurisdiction or other appropriate
authority declines to stay the effect of the demand or request in
response to action taken pursuant to Sec. 14.807(d), or if such court
or other authority orders that the demand or request be complied with
notwithstanding the final decision of the appropriate VA official, the
VA personnel upon whom the demand or request was made shall notify the
responsible VA official of such ruling or order. If the responsible VA
official determines that no further legal review of or challenge to the
ruling or order will be sought, the affected VA personnel shall comply
with the demand, order or request. If directed by the appropriate VA
official after consultation with the appropriate United States
Attorney's office, however, the affected VA personnel shall
respectfully decline to comply with the demand, request or order. See
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
(f) Normally, written demands or requests allowing reasonable lead
time for evaluation and processing are required. However, in emergency
situations where response time is limited and a written demand or
request is impractical, the following procedures should be followed:
(1) The responsible VA official has the authority to waive the
requirement of a written demand or request and may expedite a response
in the event of an emergency under conditions which could not be
anticipated in the course of proper planning or which demonstrate a
good faith attempt to comply with these regulations. Determinations on
oral demands or requests should be reserved for instances where
insistence on compliance with the requirements of a proper written
request would result in the effective denial of the request and cause
an injustice in the outcome of the legal proceeding for which the
testimony or records are sought. No requester has a right to make an
oral demand or request and receive a determination, however. Whether to
permit such an exceptional procedure is a decision within the sole
discretion of the responsible VA official.
(2) If the responsible VA official concludes that the demand or
request, or any portion of it, should be granted (after considering the
factors listed in Sec. 14.804), the responsible VA official will then
orally advise the requester of the determination in accordance with the
procedures provided in Sec. 14.807(c), including any limitations on
such testimony or production of records, and seek a written
confirmation of the oral demand or request. The responsible VA official
will make a written record of the determination made concerning the
oral demand or request, including the grant or denial, the
circumstances requiring the procedure, and the conditions to which the
requester agreed.
(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.)
Sec. 14.808 Expert or opinion testimony.
(a) VA personnel shall not provide, with or without compensation,
opinion or expert testimony in any legal proceedings concerning
official VA information, subjects or activities, except on behalf of
the United States or a party represented by the United States
Department of Justice. Upon a showing by the requester or court or
other appropriate authority that, in light of the factors listed in
Sec. 14.804, there are exceptional circumstances and that the
anticipated testimony will not be adverse to the interests of the
Department of Veterans Affairs or to the United States, the responsible
VA official designated in Sec. 14.807(b) may, in writing, grant special
authorization for VA personnel to appear and testify. If, despite the
final determination of the responsible VA official, a court of
competent jurisdiction or other appropriate authority, orders the
expert or opinion testimony of VA personnel, the personnel shall notify
the responsible VA official of such order. If the responsible VA
official determines that no further legal review of or challenge to the
order will be sought, the affected VA personnel shall comply with the
order. If directed by the appropriate VA official after consultation
with the appropriate United States Attorney's office, however, the
affected VA personnel shall respectfully decline to comply with the
demand, request or order. See United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951).
(b)(1) If, while testifying in any legal proceeding, VA personnel
are asked for expert or opinion testimony concerning official VA
information, subjects or activities, which testimony has not been
approved in advance in accordance with these regulations, the witness
shall:
(i) Respectfully decline to answer on the grounds that such expert
or opinion testimony is forbidden by these regulations;
(ii) Request an opportunity to consult with the responsible VA
official mentioned in Sec. 14.807(b) before giving such testimony;
(iii) Explain that, upon such consultation, approval for such
testimony may be provided; and
(iv) Explain that providing such testimony absent such approval may
expose the individual to criminal liability under 18 U.S.C. 201-209 and
to disciplinary or other adverse personnel action.
(2) If the witness is then ordered by the body conducting the
proceeding to provide expert or opinion testimony concerning official
VA information, subjects or activities without the opportunity to
consult with the appropriate VA official, the witness respectfully
shall refuse to do so. See United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951).
(c) Upon notification by the witness of a request for opinion or
expert testimony concerning official VA information, subjects or
activities during Sec. 14.802(d) legal proceedings, the responsible VA
official shall follow the procedures contained in this section to
determine whether such testimony shall be approved.
(d) If VA personnel who are unaware of these regulations provide
expert or opinion testimony concerning official VA information,
subjects or activities in any legal proceeding, including one mentioned
in Sec. 14.802(d) in which the United States is not already
represented, without consulting with the responsible VA official, the
witness, as soon after testifying as possible, shall inform the
responsible VA official of the fact that such testimony was given and
provide a summary of the expert or opinion testimony given.
(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.)
Sec. 14.809 Demands or requests in legal proceedings for records
protected by confidentiality statutes.
In addition to complying with the requirements of Secs. 14.800
through 14.810, requests or demands in legal proceedings for the
production of records, or for testimony of VA employees concerning
information, protected by the Privacy Act, 5 U.S.C. 552a, or other
confidentiality statutes, such as 38 U.S.C. 5701, 5705 and 7332, must
satisfy the requirements for disclosure imposed by those statutes, and
implementing regulations, such as 38 CFR 1.511, before the records may
be provided or testimony given. Accordingly, the responsible VA
official may first determine whether there is legal authority to
provide the testimony or records sought under applicable
confidentiality statutes before applying Secs. 14.800 through 14.810.
Where an applicable confidentiality statute mandates disclosure,
Secs. 14.800 through 14.810 will not apply.
(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.)
Sec. 14.810 Fees.
(a) The testimony of VA personnel as witnesses, particularly as
expert witnesses, and the production of VA records in legal proceedings
subject to Secs. 14.800 through 14.810 are services which convey
special benefits to the individuals or entities seeking such testimony
or production of records above and beyond those accruing to the general
public. These services are not regularly received by or available
without charge to the public at large. Consequently, these are the sort
of services for which the VA may establish a charge for providing under
31 U.S.C. 9701. The responsible VA official will determine all fees
associated with Secs. 14.800 through 14.810, and shall timely notify
the requester of the fees, particularly those which are to be paid in
advance.
(b)(1) When a request is granted under Sec. 14.808 to permit VA
personnel to testify in whole or in part as to expert, opinion or
policy matters, the requester shall pay to the government a fee
calculated to reimburse the cost of providing the witness. The fee
shall include:
(i) Costs of the time expended by VA personnel to process and
respond to the demand or request;
(ii) Costs of attorney time expended in reviewing the demand or
request and any information located in connection with the demand or
request;
(iii) Expenses generated by materials and equipment used to search
for, produce, and copy the responsive information;
(iv) The cost of the time expended by the witness to prepare to
testify; and
(v) Costs of travel by the witness and attendance at trial.
(2) All costs for documents necessary for such expert testimony
shall be calculated as provided in VA regulations implementing the fee
provisions of the Freedom of Information Act, 5 U.S.C. 552.
(c) When an individual testifies in legal proceedings covered by
these regulations in any capacity other than as an expert witness, the
requester shall pay to the witness the fee and expenses prescribed for
attendance by the applicable rule of court. If no such fee is
prescribed, the applicable Federal rule, such as a local Federal
district court rule, will apply. No additional fee will be prescribed
for the time spent while testifying or in attendance to do so.
(d) When a requester wishes to interview VA personnel as part of
legal proceedings covered by these regulations, and such interview has
been approved in accordance with these regulations, the requester shall
pay a fee calculated upon the total hourly pay of the individual
interviewed.
(e) When VA produces records in legal proceedings pursuant to
Secs. 14.800 through 14.810, the fees to be charged and paid prior to
production of the records shall be the fees charged by VA under its
regulations implementing the fee provisions of the Freedom of
Information Act, 5 U.S.C. 552.
(f) Fees shall be paid as follows:
(1) Fees for copies of documents, blueprints, electronic tapes, or
other VA records will be paid to the VA office or station providing the
records, and covered to the General Fund of the Department of the
Treasury.
(2) Witness fees for testimony shall be paid to the witness, who
shall endorse the check ``pay to the United States,'' and surrender it
to his or her supervisor. It shall thereafter be deposited in the
General Fund.
(3) The private party requesting a VA witness shall forward in
advance necessary round trip tickets and all requisite travel and per
diem funds.
(g) A waiver of any fees in connection with the testimony of an
expert witness may be granted by the appropriate VA official at the
official's discretion provided that the waiver is in the interest of
the United States. Fee waivers shall not be routinely granted, nor
shall they be granted under circumstances which might create the
appearance that the VA or the United States favors one party or a
position advocated by a party to the legal proceeding.
(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.)
[FR Doc. 94-3288 Filed 2-10-94; 8:45 am]
BILLING CODE 8320-01-P
