[Code of Federal Regulations]

[Title 39, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 39CFR265.12]



[Page 113-116]

 

                        TITLE 39--POSTAL SERVICE

 

                 CHAPTER I--UNITED STATES POSTAL SERVICE

 

PART 265_RELEASE OF INFORMATION--Table of Contents

 

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;

    (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;

    (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 in 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, 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 Manager, Records Office, U.S. Postal Service, 475 

L'Enfant Plaza,



[[Page 114]]



SW., Washington, DC 20260, telephone (202) 268-2608.

    (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. 552a 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; and

    (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 (c)(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



[[Page 115]]



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 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:



[[Page 116]]



    (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 (28 

U.S.C. Appendix) regarding service of process.



[60 FR 17224, Apr. 5, 1995, as amended at 60 FR 57345, Nov. 15, 1995; 64 

FR 41291, July 30, 1999; 68 FR 56559, Oct. 1, 2003]