43 C.F.R. § 2.280

What does this subpart cover?

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(a) This subpart describes how the Department of the Interior (including all its bureaus and offices) responds to requests or subpoenas for:

(1) Testimony by employees in State, territorial or Tribal judicial, legislative or administrative proceedings concerning information acquired while performing official duties or because of an employee's official status;

(2) Testimony by employees in Federal court civil proceedings in which the United States is not a party concerning information acquired while performing official duties or because of an employee's official status;

(3) Testimony by employees in any judicial or administrative proceeding in which the United States, while not a party, has a direct and substantial interest;

(4) Official records or certification of such records for use in Federal, State, territorial or Tribal judicial, legislative or administrative proceedings.

(b) In this subpart, “employee” means a current or former Department employee, including a contract or special government employee.

(1) Congressional requests or subpoenas for testimony or records;

(2) Federal court civil proceedings in which the United States is a party;

(3) Federal administrative proceedings;

(4) Federal, State and Tribal criminal court proceedings;

(5) Employees who voluntarily testify, while on their own time or in approved leave status, as private citizens as to facts or events that are not related to the official business of the Department. The employee must state for the record that the testimony represents the employee's own views and is not necessarily the official position of the Department. See 5 CFR §§ 2635.702(b), 2635.807 (b).

(6) Testimony by employees as expert witnesses on subjects outside their official duties, except that they must obtain prior approval if required by § 2.90.

(d) This subpart does not affect the rights of any individual or the procedures for obtaining records under the Freedom of Information Act (FOIA), Privacy Act, or statutes governing the certification of official records. The Department FOIA and Privacy Act regulations are found at 43 CFR part 2, subparts B and D.

(e) Nothing in this subpart is intended to impede the appropriate disclosure under applicable laws of Department information to Federal, State, territorial, Tribal, or foreign law enforcement, prosecutorial, or regulatory agencies.

(f) This subpart only provides guidance for the internal operations of the Department, and neither creates nor is intended to create any enforceable right or benefit against the United States.

Notes of Decisions

Cited in 2 cases, 2017–2018 · leading case: Armstrong v. Arcanum Grp., Inc., 250 F. Supp. 3d 802 (D. Colo. 2017).

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Armstrong v. Arcanum Grp., Inc., 250 F. Supp. 3d 802 (D. Colo. 2017). · cites it 3× “See Doc, 24 at 2; 43 C.F.R. § 2.280 et seq. BLM further contends that its Touhy regulations cover such employees in “[fjederal court' proceedings in which the United States is not a party concerning information acquired while performing official duties or because of an…”

Labatte v. United States, 899 F.3d 1373 (Fed. Cir. 2018). “" 43 C.F.R. § 2.280 (c)(5). Indeed, the regulations state that, the "Department's general policy not to allow its employees to testify or to produce Department records either upon request or by subpoena" does not apply to "proceedings covered by § 2.”

— 43 C.F.R. § 2.280(b) — 1 case

Armstrong v. Arcanum Grp., Inc., 250 F. Supp. 3d 802 (D. Colo. 2017). “See Doc, 24 at 2; 43 C.F.R. § 2.280 et seq. BLM further contends that its Touhy regulations cover such employees in “[fjederal court' proceedings in which the United States is not a party concerning information acquired while performing official duties or because of an…”

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