C.F.R. » Title 32 » CHAPTER V—DEPARTMENT OF THE ARMY › SUBCHAPTER A—AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS › PART 516—LITIGATION › Subpart G—Release of Information and Appearance of Witnesses Scope

32 C.F.R. § 516.49

Expert witnesses

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(a) General rule. Present DA personnel will not provide, with or without compensation, opinion or expert testimony either in private litigation or in litigation in which the United States has an interest for a party other than the United States. Former DA personnel will not provide, with or without compensation, opinion or expert testimony concerning official information, subjects, or activities either in private litigation or in litigation in which the United States has an interest for a party other than the United States. (See figure G-3, appendix G of this part). An SJA or legal adviser is authorized to deny a request for expert testimony, which decision may be appealed to Litigation Division.

(b) Exception to the general prohibition. If a requester can show exceptional need or unique circumstances, and the anticipated testimony will not be adverse to the interests of the United States, Litigation Division may grant special written authorization for present or former DA personnel to testify as expert or opinion witnesses at no expense to the United States. In no event may present or former DA personnel furnish expert or opinion testimony in a case in which the United States has an interest for a party whose interests are adverse to the interests of the United States.

(c) Exception for AMEDD personnel. Members of the Army medical department or other qualified specialists may testify in private litigation with the following limitations (See figure G-4, appendix G, of this part):

(1) The litigation involves patients they have treated, investigations they have made, laboratory tests they have conducted, or other actions taken in the regular course of their duties.

(2) They limit their testimony to factual matters such as the following: their observations of the patient or other operative facts; the treatment prescribed or corrective action taken; course of recovery or steps required for repair of damage suffered; and, contemplated future treatment.

(3) Their testimony may not extend to expert or opinion testimony, to hypothetical questions, or to a prognosis.

(d) Court-ordered expert or opinion testimony. If a court or other appropriate authority orders expert or opinion testimony, the witness will immediately notify Litigation Division. If Litigation Division determines it will not challenge the subpoena or order, the witness will comply with the subpoena or order. If directed by Litigation Division, however, the witness will respectfully decline to comply with the subpoena or order. (See United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).

(e) Expert witness fees. All fees tendered to present DA personnel as an expert or opinion witness, to the extent they exceed actual travel, meals, and lodging expenses of the witness, will be remitted to the Treasurer of the United States.

Notes of Decisions
Cited in 6 cases (1 in the last 5 years), 1997–2024 · leading case: Gulf Grp. Gen. Enter. Co. W.L.L. v. United States, 98 Fed. Cl. 639 (Fed. Cl. 2011).
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Gulf Grp. Gen. Enter. Co. W.L.L. v. United States, 98 Fed. Cl. 639 (Fed. Cl. 2011). · cites it 14× “Given the impending trial, this Order confirms the court’s direction as to how to proceed, given orally to the parties during a telephone conference on April 19, 2011. Mr. Perry is a retired Army contracting officer.”
Resource Investments, Inc. v. United States, 93 Fed. Cl. 373 (Fed. Cl. 2010). · cites it 6× “805 ; 32 C.F.R. §§ 516.49 , 516.52). In his letter, defendant’s counsel added further that “conflict of interest principles and ethics rules prevent Mr.”
State v. Hughes, 938 P.2d 457 (Ariz. 1997). · cites it 2× “He now also asserts that military personnel are not authorized to testify as witnesses, citing 32 C.F.R. § 516.49 , and claims that Crace’s statements about prisoners of war added a sinister aura to the proceedings, inflamed the jurors’ passions, and failed to assist them in…”
G.A.S.P. v. Env't Quality Comm'n, 195 P.3d 66 (Or. Ct. App. 2008). “The Army asserted that Army regulations, specifically 32 CFR sections 516.49, 516.52 — the so-called “Touhy regulations” — prohibited Army employees, such as Cramer, from providing expert or opinion testimony in litigation for a party other than the United States.”
Gasp v. Eqc, 195 P.3d 66 (Or. Ct. App. 2008). “The Army asserted that Army regulations, specifically 32 C.F.R. sections 516.49, 516.52—the so-called " Touhy regulations"— prohibited Army employees, such as Cramer, from providing expert or opinion testimony in litigation for a party other than the United States.”
Prof'l Fee Matters Concerning the Jackson Walker Law Firm (Bankr. S.D. Tex. 2024). “42 , the predecessor to 32 C.F.R. § 516.49 ); Alexander v. FBI, 186 F.”
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