[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Proposed Rules]
[Pages 8610-8612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3702]



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POSTAL SERVICE

39 CFR Part 265


Demands for Testimony or Records in Certain Legal Proceedings

AGENCY: Postal Service.

ACTION: Proposed rule.

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SUMMARY: The Postal Service proposes establishing a procedure for 
Postal Service response to subpoenas or other demands for Postal 
Service employees to testify about, or produce records concerning, 
Postal Service matters in private litigation or other proceedings in 
which the United States is not a party. This proposed rule should 
minimize the disruption of official duties caused by compliance with 
those demands, maintain Postal Service control over the release of 
official information, and otherwise protect the interests of the United 
States. This proposed rule would prohibit Postal Service employees from 
complying with those demands without the General Counsel's permission.

DATES: Comments must be received on or before March 17, 1995.

ADDRESSES: Written comments should be mailed or delivered to: Library, 
Attention Federal Register Comments, U.S. Postal Service, 475 L'Enfant 
Plaza, SW, Room 11800, Washington, DC 20260-1540. Copies of all written 
comments will be available for public inspection and photocopying 
between 8:15 a.m. and 4:45 p.m., Monday through Friday, in Room 11800 
at the above address.

FOR FURTHER INFORMATION CONTACT: Julie A. Holvik, Attorney, (312) 765-
5230.

SUPPLEMENTARY INFORMATION: The proposed rule provides that, in response 
to subpoenas or other demands for testimony or records concerning 
Postal Service matters in private litigation or other proceedings in 
which the United States is not a party, Postal Service employees may 
testify or produce records only if the General Counsel or the General 
Counsel's delegate authorizes compliance with the demand. In making 
this determination, the General Counsel or his or her delegate will 
consider whether compliance is in accordance with applicable laws, 
privileges, rules, authority, and regulations and would not be contrary 
to the interests of the United States.
    Several federal agencies have enacted this type of regulation, 
including the Department of Justice, the Department of Transportation, 
and the Department of Veterans Affairs. The courts have recognized the 
authority of federal agencies to limit compliance with demands in this 
manner. See, United States ex. rel. Touhy v. Ragen, 340 U.S. 462 
(1951). Moreover, subpoenas by state courts, legislatures, or 
legislative committees that attempt to assert jurisdiction over federal 
agencies are inconsistent with the Supremacy Clause of the U.S. 
Constitution, and a federal regulation regarding compliance with those 
subpoenas reinforces this principle. See, McCulloch v. Maryland, 17 
U.S. (4 Wheat.) 316 (1819); United States v. McLeod, 385 F.2d 734 (5th 
Cir. 1967).
    This proposed rule would not apply to situations in which the 
United States is a party in a lawsuit. It also would not apply to 
instances in which an employee is requested to appear in legal 
proceedings unrelated to federal activities or the employee's duties at 
the Postal Service. Finally, the proposed rule would not apply to 
subpoenas or requests for information submitted by either House of 
Congress or by a congressional committee or subcommittee with 
jurisdiction over the matter for which the testimony or information is 
requested.

List of Subjects in 39 CFR Part 265

    Administrative practice and procedure, Government employees, 
Release of information.

    For the reasons set out in this notice, 39 CFR part 265 is proposed 
to be amended as follows.



PART 265--RELEASE OF INFORMATION

    1. The authority citation for part 265 is revised to read as 
follows:

    Authority: 39 U.S.C. 401, 403, 410, 1001, 2601; 5 U.S.C. 552; 
Inspector General Act of 1978, as amended (Pub. L. 95-452, as 
amended, 5 U.S.C. App. 3).

    2. Section 265.12 is added to read as follows:


Sec. 265.12  Demands for testimony or records in certain legal 
proceedings.

    (a) Scope and applicability of this section. (1) This section 
establishes procedures to be followed if the Postal Service or any 
Postal Service employee receives a demand for testimony concerning or 
disclosure of:
    (i) Records contained in the files of the Postal Service; or
    (ii) Information relating to records contained in the files of the 
Postal Service; or
    (iii) Information or records acquired or produced by the employee 
in the course of his or her official duties or because of the 
employee's official status.
    (2) This section does not create any right or benefit, substantive 
or procedural, enforceable by any person against the Postal Service.
    (3) This section does not apply to any of the following:
    (i) Any legal proceeding in which the United States is a party;
    (ii) A demand for testimony or records made by either House of 
Congress or, to the extent of matter within its jurisdiction, any 
committee or subcommittee of Congress; or
    (iii) An appearance by an employee in his or her private capacity 
in a legal proceeding in which the employee's testimony does not relate 
to the employee's official duties or the functions of the Postal 
Service; or
    (iv) A demand for testimony or records submitted to the Postal 
Inspection Service (a demand for Inspection Service records or 
testimony will be handled in accordance with rules published at 
Sec. 265.11).
    (4) This section does not exempt a request from applicable 
confidentiality requirements, including the requirements of the Privacy 
Act. 5 U.S.C. 552a.
    (b) Definitions. The following definitions apply to this section:
    (1) Adjudicative authority includes, but is not limited to, the 
following:
    (i) A court of law or other judicial forums, whether local, state, 
or federal; and
    (ii) Mediation, arbitration, or other forums for dispute 
resolution.
    (2) Demand includes a subpoena, subpoena duces tecum, request, 
order, [[Page 8611]] or other notice for testimony or records arising 
in a legal proceeding.
    (3) Employee means a current employee or official of the Postal 
Service.
    (4) General Counsel means the General Counsel of the United States 
Postal Service, the Chief Field Counsels, or an employee of the Postal 
Service acting for the General Counsel under a delegation of authority.
    (5) Legal proceeding means:
    (i) A proceeding before an adjudicative authority;
    (ii) A legislative proceeding, except for a proceeding before 
either House of Congress or before any committee or subcommittee of 
Congress; or
    (iii) An administrative proceeding.
    (6) Private litigation means a legal proceeding to which the United 
States is not a party.
    (7) Records custodian means the employee who maintains a requested 
record. For assistance in identifying the custodian of a specific 
record, contact the Records Officer, United States Postal Service, 475 
L'Enfant Plaza, SW, Washington, DC 20260-5240.
    (8) Testimony means statements made in connection with a legal 
proceeding, including but not limited to statements in court or other 
forums, depositions, declarations, affidavits, or responses to 
interrogatories.
    (9) United States means the federal government of the United States 
and any of its agencies, establishments, or instrumentalities, 
including the United States Postal Service.
    (c) Requirements for submitting a demand for testimony or records. 
(1) Ordinarily, a party seeking to obtain records from the Postal 
Service should submit a request in accordance with the provisions of 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Postal 
Service's regulations implementing the FOIA at 39 CFR 265.1 through 
265.9 or the Privacy Act, 5 U.S.C. 266 and the Postal Service's 
regulations implementing the Privacy Act at 39 CFR 266.1 through 266.9.
    (2) A demand for testimony or records issued pursuant to the rules 
governing the legal proceeding in which the demand arises must:
    (i) Be in writing;
    (ii) Identify the requested record and/or state the nature of the 
requested testimony, describe the relevance of the record or testimony 
to the proceeding, and why the information sought is unavailable by any 
other means.
    (iii) If testimony is requested, contain a summary of the requested 
testimony and a showing that no document could be provided and used in 
lieu of testimony.
    (3) Procedures for service of demand are made as follows:
    (i) Service of a demand for testimony or records (including, but 
not limited to, personnel or payroll information) relating to a current 
or former employee must be made in accordance with the applicable rules 
of civil procedure on the employee whose testimony is requested or the 
records custodian. The requester also shall deliver a copy of the 
demand to the District Manager, Customer Services and Sales, for all 
current employees whose work location is within the geographic 
boundaries of the manager's district, and any former employee whose 
last position was within the geographic boundaries of the manager's 
district. A demand for testimony or records must be received by the 
employee whose testimony is requested and the appropriate District 
Manager, Customer Services and Sales, at least ten (10) working days 
before the date the testimony or records are needed.
    (ii) Service of a demand for testimony or records other than those 
described in paragraph (3)(i) of this section must be made in 
accordance with the applicable rules of civil procedure on the employee 
whose testimony is requested or the records custodian. The requester 
also shall deliver a copy of the demand to the General Counsel, United 
States Postal Service, 475 L'Enfant Plaza, SW, Washington DC 20260-
1100, or the Chief Field Counsel. A demand for testimony or records 
must be received by the employee and the General Counsel or Chief Field 
Counsel at least ten (10) working days before the date testimony or 
records are needed.
    (d) Procedures followed in response to a demand for testimony or 
records. (1) After an employee receives a demand for testimony or 
records, the employee shall immediately notify the General Counsel or 
Chief Field Counsel and request instructions.
    (2) An employee may not give testimony or produce records without 
the prior authorization of the General Counsel.
    (3)(i) The General Counsel may allow an employee to testify or 
produce records if the General Counsel determines that granting 
permission:
    (A) Would be appropriate under the rules of procedure governing the 
matter in which the demand arises and other applicable laws, 
privileges, rules, authority, and regulations; and
    (B) Would not be contrary to the interest of the United States. The 
interest of the United States includes, but is not limited to, 
furthering a public interest of the Postal Service and protecting the 
human and financial resources of the United States.
    (ii) An employee's testimony shall be limited to the information 
set forth in the statement described at paragraph (c)(2) of this 
section or to such portions thereof as the General Counsel determines 
are not subject to objection. An employee's testimony shall be limited 
to facts within the personal knowledge of the employee. A Postal 
Service employee authorized to give testimony under this rule is 
prohibited from giving expert or opinion testimony, answering 
hypothetical or speculative questions, or giving testimony with respect 
to privileged subject matter. The General Counsel may waive the 
prohibition of expert testimony under this paragraph only upon 
application and showing of exceptional circumstances and the request 
substantially meets the requirements of this section.
    (4) The General Counsel may establish conditions under which the 
employee may testify. If the General Counsel authorizes the testimony 
of an employee, the party seeking testimony shall make arrangements for 
the taking of testimony by those methods that, in the General Counsel's 
view, will least disrupt the employee's official duties. For example, 
at the General Counsel's discretion, testimony may be provided by 
affidavits, answers to interrogatories, written depositions, or 
depositions transcribed, recorded, or preserved by any other means 
allowable by law.
    (5) If a response to a demand for testimony or records is required 
before the General Counsel determines whether to allow an employee to 
testify, the employee or counsel for the employee shall do the 
following:
    (i) Inform the court or other authority of the regulations in this 
section; and
    (ii) Request that the demand be stayed pending the employee's 
receipt of the General Counsel's instructions.
    (6) If the court or other authority declines the request for a 
stay, or rules that the employee must comply with the demand regardless 
of the General Counsel's instructions, the employee or counsel for the 
employee shall respectfully decline to comply with the demand, citing 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the 
regulations in this section.
    (7) The General Counsel may request the assistance of the 
Department of Justice or a U.S. Attorney where necessary to represent 
the interests of the Postal Service and the employee.
    (8) At his or her discretion, the General Counsel may grant a 
waiver of any procedure described by this section, where waiver is 
considered necessary to [[Page 8612]] promote a significant interest of 
the United States or for other good cause.
    (9) If it otherwise is permissible, the records custodian may 
authenticate, upon the request of the party seeking disclosure, copies 
of the records. No employee of the Postal Service shall respond in 
strict compliance with the terms of a subpoena duces tecum unless 
specifically authorized by the General Counsel.
    (e) Postal Service employees as expert witnesses. No Postal Service 
employee may testify as an expert or opinion witness, with regard to 
any matter arising out of the employee's official duties or the 
functions of the Postal Service, for any party other than the United 
States, except that in extraordinary circumstances, the General Counsel 
may approve such expert testimony in private litigation. A Postal 
Service employee may not testify as such an expert witness without the 
express authorization of the General Counsel. A litigant must obtain 
authorization of the General Counsel before designating a Postal 
Service employee as an expert witness.
    (f) Substitution of Postal Service employees. Although a demand for 
testimony may be directed to a named Postal Service employee, the 
General Counsel, where appropriate, may designate another Postal 
Service employee to give testimony. Upon request and for good cause 
shown (for example, when a particular Postal Service employee has 
direct knowledge of a material fact not known to the substitute 
employee designated by the Postal Service), the General Counsel may 
permit testimony by a named Postal Service employee.
    (g) Fees and costs. (1) The Postal Service may charge fees, not to 
exceed actual costs, to private litigants seeking testimony or records 
by request or demand. The fees, which are to be calculated to reimburse 
fully the Postal Service for processing the demand and providing the 
witness or records, may include, among others:
    (i) Costs of time spent by employees, including attorneys, of the 
Postal Service to process and respond to the demand;
    (ii) Costs of attendance of the employee and agency attorney at any 
deposition, hearing, or trial;
    (iii) Travel costs of the employee and agency attorney;
    (iv) Costs of materials and equipment used to search for, process, 
and make available information.
    (2) All costs for employee time shall be calculated on the hourly 
pay of the employee (including all pay, allowance, and benefits) and 
shall include the hourly fee for each hour, or portion of each hour, 
when the employee is in travel, in attendance at a deposition, hearing, 
or trial, or is processing or responding to a request or demand.
    (3) At the discretion of the Postal Service, where appropriate, 
costs may be estimated and collected before testimony is given.
    (h) Acceptance of service. This section does not in any way 
abrogate or modify the requirements of the Federal Rules of Civil 
Procedure regarding service of process.
    An appropriate amendment to 39 CFR 265.1 to reflect these changes 
will be published if the proposal is adopted.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 95-3702 Filed 2-14-95; 8:45 am]
BILLING CODE 7710-12-P