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Justice Manual

Justice Manual
Title 3: EOUSA

3-8.000 - Financial Management

3-8.100 Operational Expenses
3-8.130 Expenditures and Obligations Under the Anti-Deficiency Act
3-8.210 Depositions
3-8.230 Foreign Counsel
3-8.232 Foreign Witnesses
3-8.240 Payment of Travel Expenses of Defendant and Counsel to Attend Depositions in Criminal Matters Taken at the Request of the Government
3-8.250 Interpreters
3-8.280 Payment of Expert Witnesses Appointed by the Court Under Federal Rules of Evidence
3-8.400 Appraisers and Masters
3-8.420 Court Reporters
3-8.430 Employment of Independent Reporters
3-8.440 Employment of Additional Reporters in Lands Cases
3-8.450 Grand Jury Reporting
3-8.520 Expenses Incurred on Behalf of Indigent Defendants
3-8.540 Notary Expenses of Employees
3-8.550 Expenses Requiring Prior Authorization
3-8.560 Out-of-Pocket Litigative Expenses Incurred by an Agency
3-8.570 Expenses Incurred in a Foreclosure Proceeding Brought on Behalf of a Government Agency or Corporation
3-8.600 Advance Payment of Bills
3-8.620 Appropriations Chargeable
3-8.623 Chargeable to Legal Divisions of the Department of Justice
3-8.624 Chargeable to United States Courts
3-8.700 Travel Authority

3-8.100 Operational Expenses

The Director of EOUSA is the official responsible and accountable for the appropriation of the Offices of the United States Attorneys. Each United States Attorney has been delegated authority to manage the funds/budget of his/her office within certain limitations. That delegation is normally administered through the administrative staff of the Office of the United States Attorney.

Financial expenditures should remain consistent with the delegations of each office and within relevant guidelines, regulations, and statutes.

[updated February 2018]

3-8.130 Expenditures and Obligations Under the Anti-Deficiency Act

Cross reference(s): JM 3-8.100 et seq.; 3-8.300 et seq.; 3-8.600 et seq.; 4-1.310; 4-1.410; 4-1.600; 4-10.100; 5-5.230; 5-12.111; 5-12.613

The Anti-Deficiency Act states, inter alia, that the government may not: (1) make or authorize an expenditure exceeding an appropriation; or, (2) involve the government in a contract for money before an appropriation is made, unless authorized by law. 31 U.S.C. § 1341(a).  In addition to the plain language of the two preceding prohibitions, this also means that employees may not contract or obligate the United States Attorneys’ appropriation for services to be performed outside of the current fiscal year, absent explicit statutory authority.

Attorneys should be particularly mindful of this restriction if they are contemplating entering into any consent decree. Please ensure that the terms of the consent decree DO NOT obligate the government to expend funds beyond the purpose, time or amount of the office’s available resources. If a USAO needs an exception to this restriction, the Office must consult with and obtain prior approval from EOUSA before executing the agreement.

Advance notification will give EOUSA the ability to review the feasibility and legality of such expenses and an opportunity to consult with Department of Justice officials and Congress to obtain approval.

This restriction does not apply to each United States Attorney’s delegated authority to settle civil cases up to $1,000,000 paid out of the Judgment Fund. See 28 C.F.R. § 0.168.

[updated February 2018] [cited in JM 3-1.200]

3-8.210 Depositions

As part of their employees’ litigative duties, United States Attorneys are authorized to incur the necessary expenses of taking depositions. If a salaried federal court reporter is used, the reporter is entitled to compensation for the production of the transcript only (attendance fees may not be paid). Payment of an attendance fee would be considered a violation of the prohibition against dual compensation. 5 U.S.C. § 5533. The salaried federal reporter is not controlled by the court-reporting law (see 28 U.S.C. § 753 and JM 3-8.420) as to charges for work not regulated by that statute. Payment to stenographers for services should be in accord with prevailing local rates.

Stenographic and notarial charges related to depositions for indigent persons are paid by the Department of Justice only in cases of fact witnesses.

Depositions to be taken in a foreign country must be channeled through the Department of State in the same manner as subpoenaing a witness who resides in a foreign country to appear in court.

The Office of International Affairs (OIA) in the Criminal Division, or the Office of Foreign Litigation (OFL) in the Civil Division, should be consulted in the case of depositions to be taken in the United States at the request of a foreign court.

If foreign witnesses are to be examined on the premises of the diplomatic or consular mission, arrangements should be made in advance with the Special Authorization Unit, JMD, to provide advance authority to the consular official to reimburse these witnesses in the same manner as those appearing in federal courts.

Deposition expenses of experts who will not be government witnesses must be paid as litigative expenses of the USAO.

[updated February 2018] [cited in JM 3-1.200]

3-8.230 Foreign Counsel

United States Attorneys have authority to incur expenses to hire foreign counsel. Contact the Resource Management and Planning Staff, EOUSA, for assistance.

[updated February 2018]

3-8.232 Foreign Witnesses

Consular officials will normally serve subpoenas on American citizens (including American Nationals who, while not citizens, owe permanent allegiance to the United States, as well as alien residents, who have been lawfully admitted for permanent residence in the United States, although not citizens) residing abroad, except in those countries (such as Switzerland) which prohibit foreigners from serving legal documents. In these cases, the Office of International Affairs (OIA) in the Criminal Division or the Office of Foreign Litigation (OFL) in the Civil Division should be consulted, as appropriate.

American citizens are entitled to compensation for travel and expenses in these cases. When the testimony of the employee of a foreign government is contemplated, it is imperative that the attorney submit a request directly to OIA in the Criminal Division, or the OFL in the Civil Division, prior to communicating with the witness or the foreign government. The appropriate office will request the Department of State to obtain the approval of the foreign government involved.

Payment for subsistence, witness fees, and actual cost of travel, for both American and foreign citizens, is fixed by 28 U.S.C. § 1821.

[updated February 2018] [cited in JM 3-1.200]

3-8.240 Payment of Travel Expenses of Defendant and Counsel to Attend Depositions in Criminal Matters Taken at the Request of the Government

Pursuant to Federal Rule of Criminal Procedure 15(d), if a deposition was requested by the government, the court may order the government to pay (1) any reasonable travel and subsistence expenses of the defendant and the defendant’s attorney to attend the deposition, and (2) the costs of the deposition transcript. Where the court determines that the defendant is personally unable to bear the deposition expenses, the court must order the government to pay these expenses, regardless of who requested the deposition. Where the USAO is the prosecuting office and the government is directed by the court to pay such costs under Rule 15, the expenses will be considered litigative expenses chargeable against the United States Attorneys’ appropriation. The defendant and his/her counsel will be reimbursed for “reasonable expenses,” i.e., only those expenses for which a government employee traveling under government travel regulations would be reimbursed.

Note. Rule 15 does not specifically address other ancillary costs of a deposition, for example, an attendance fee for the reporter; videography; or payment of a special master appointed under 18 U.S.C. § 3507. Depending on the circumstances, the government may advocate for shared or full payment of such ancillary costs by the defendant (including indigent defendants, whose share would generally be paid pursuant to the Criminal Justice Act).

[updated February 2018]

3-8.250 Interpreters

The Court Interpreters Act of 1978 requires the Director of the Administrative Office of the U.S. Courts (AOUSC), to “establish a program to facilitate the use of interpreters in courts of the United States.” The AOUSC will prescribe standards for interpreter qualifications and will certify the qualifications of individuals who may serve as interpreters in bilingual proceedings and in proceedings involving persons whose hearing is impaired.

All costs for interpreter services necessary to enable a party to comprehend the proceedings in the courtroom or in chambers, to communicate with counsel in the immediate environs of the courtroom in connection with ongoing judicial proceedings and to communicate with the presiding judicial officer are payable from funds appropriated to the judiciary. Interpreter services required by a criminal defendant to whom the government furnishes representation under the Criminal Justice Act are payable from funds appropriated to support that Act.

The USAO is generally chargeable only for interpreter services necessary to interpret the testimony of prospective government witnesses in the investigative stage. When the case goes to trial, those trial-related interpretive expenses can be funded under an expert witness agreement using resources from the Fees and Expenses of Witnesses (FEW) appropriation. Although testimony situations are the most common occasion for the use of interpreters, interpreters may also be engaged for services necessary to determine the course of litigation. They may be paid for, or provided, transportation, facilities, equipment or materials as necessary and appropriate to satisfy the United States Attorney’s requirements.

Interpreters are required to execute a written oath as prescribed by the AOUSC. The rate of compensation should be fixed by agreement with the interpreter before the interpreter renders the service required by the United States Attorney. Rates of compensation should correspond to rates paid by the court. The AOUSC regulation (Sec. 1.72) currently permits the presiding judicial officer to fix reasonable compensation according to the prevailing rates at the location where the designated interpreter regularly works.

It is the responsibility of investigative agencies to pay the costs to translate and transcribe recordings of foreign language telephone conversations obtained under authority of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 to 2520.

[updated February 2018]

3-8.280 Payment of Expert Witnesses Appointed by the Court Under the Federal Rules of Evidence

Federal judges are allowed to appoint expert witnesses to assist the court in the performance of its duty on a particular case or proceeding under Fed.R.Evid. 706. The court may either appoint an expert of its own choosing or one agreed upon by both parties. The expert’s deposition may be taken by any party and he/she may be called to testify by the court or any party.

  1. Criminal Proceedings and Civil Condemnation Proceedings. The compensation of expert witnesses appointed by the Court under Fed.R.Evid. 706 is treated as a litigative expense chargeable to the litigating agency of the government. 58 COMP.GEN. § 259 (1979). In those instances where the Department is the litigating agency, the expenses of the court- appointed expert witness are payable from the FEW appropriation.
  2. Civil Proceedings. Fed.R.Evid. 706 provides that in other civil actions, the compensation of court-appointed experts shall be paid by the parties in such proportions and at such times as the court directs. Any compensation charged to the Department will be paid from the FEW appropriation.
  3. Authorization and Payment Procedures. When the expert is appointed by the court and the United States is ordered to pay expenses, the United States Attorney should enter into an expert witness agreement with the expert and attach a copy of the court order appointing the expert witness under Fed.R.Evid. 706.
  4. Exclusion Under Fed.R.Evid. 706. The appointment of expert witnesses for an indigent defendant in criminal cases or in civil habeas corpus cases is not provided under Fed.R.Evid. 706. In such instances, the Criminal Justice Act authorizes the court-appointed defense attorney to hire an expert witness on behalf of the indigent defendant. The expenses of the expert will be paid by the AOUSC from funds appropriated for the implementation of the Criminal Justice Act.
     

[Updated February 2018]

 

3-8.400 Appraisers and Masters

The Department pays for the compensation of special masters or appraisers consistent with the fees and expenses set by the court, but it reserves the right to refuse payment of unusual or unreasonable fees and/or expenses.

United States Attorneys may authorize payment of reasonable compensation for special masters, guardians ad litem, or appraisers appointed by the court as the result of an action brought by the United States. Vouchers for compensation and expenses of such individuals must be supported by copies of the order making the appointment and fixing compensation and expenses. Funding must come from the USAO’s litigation budget, not from the FEW appropriation. The attorney should make a note on the applicable form when it is being used for a special master, guardian ad litem, or appraiser.

Fees and expenses of land commissioners will not be paid by the Department. Land commissioners appointed pursuant to Rule 71A, Federal Rules of Civil Procedure, are payable from funds appropriated to the judiciary.

[updated February 2018]

3-8.420 Court Reporters

As provided in 28 U.S.C. § 753, each district court shall appoint one or more salaried court reporters who shall attend each session and record verbatim all proceedings in open court, and all other proceedings as specified by statute, rule, order of the court, or as requested by any party to the proceedings. EOUSA’s interpretation of the statute requires that every word in criminal proceedings be recorded, including closing arguments. It is suggested that, in districts where it is not the practice to record proceedings in full, application should be made to the court to take corrective measures insuring compliance with the statute.

The salaried reporter is entitled to receive, in addition to salary, such fees for transcripts as may be prescribed from time to time by the court with the approval of the Judicial Conference. These fees are collectible from the parties, including the United States. The Department of Justice is not financially responsible for any part of a transcript furnished to: the court; opponent counsel; to persons proceeding in forma pauperis; nor for the reporter’s travel expenses except that, on approval of the court, the cost of the original and copies may be apportioned among the persons to whom they are furnished. If the government requires daily transcripts, any additional expenses involved in providing more rapid delivery must be borne by the reporter. The only exception to this is in rural areas, where the court reporter may need to hire reporters from outside the community area to help produce hourly, daily, or expedited transcripts. In such instances, the reporter may bill the ordering party for the subsistence costs of other reporters or auxiliary personnel. The costs are authorized up to the amount of travel subsistence that a government employee may be reimbursed for the same travel. An attendance fee for auxiliary personnel is not billable to the ordering party.

[updated February 2018]

3-8.430 Employment of Independent Reporters

The Department’s appropriations are not available for payment of court reporters’ fees for recording court proceedings. If the salaried reporter is unable to report on court proceedings, the matter of obtaining additional reporters is a consideration for the court.

[updated February 2018]

3-8.440 Employment of Additional Reporters in Lands Cases

In view of the difficulty of obtaining the services of a salaried court reporter in Lands Commissioner cases, and because Department appropriations may not be used for additional reporters, the Director of AOUSC has advised that, in special cases when the salaried court reporter is unavailable to report these hearings, it will authorize the appointment of a temporary court reporter for that purpose. In such cases, the United States Attorney should request that the judge secure authority for appointment from AOUSC.

[updated February 2018]

3-8.450 Grand Jury Reporting

Grand jury reporting may be performed by an employee of the USAO (Fed.R.Crim.P.Rule 6(d)) or by a commercial reporter engaged for the purpose. The salaried federal court reporter may report grand jury proceedings, but he/she may only be paid for transcripts produced, not for time worked. Payment to a salaried federal court reporter for time worked would be considered a violation of the statutory prohibition against dual compensation. 5 U.S.C. § 5533.

[updated February 2018]

3-8.520 Expenses Incurred on Behalf of Indigent Defendants

Following is a listing of expenses which may be incurred for persons proceeding in forma pauperis, and the responsibility for such expenses.

  1. Fact Witnesses. Costs relating to subpoenas and fees of indigent defendants’ witnesses are the responsibility of the Department and payable at the rates prescribed for witnesses pursuant to 28 U.S.C. § 1821. 
     
  2. Expert Witnesses. Expert witnesses called by the defense and necessary to the adequate defense of an indigent person are paid from funds appropriated for the implementation of the Criminal Justice Act by the AOUSC. These expenses are authorized on Form CJA-21 after certification by counsel for the indigent defendant and approval by the presiding court or magistrate. Experts called by the court on behalf of the indigent person are paid by the AOUSC. The Department will pay for expert witness fees and expenses for expert witnesses appearing on behalf of the government. United States Attorneys have authority to employ an expert witness appearing on behalf of the government.
     
  3. Mental Examinations for Indigent Persons. Expenses for examinations under 18 U.S.C. § 4241 to determine a defendant's mental competency to stand trial are always the responsibility of the Department. Expenses for examinations to determine a defendant's mental responsibility at the time of the alleged offense are paid by the AOUSC, except when the request is made by the United States, in which case the Department is responsible. See OBD Order 2110.20B (February 2001).
     
  4. Depositions. Expenses for travel and subsistence of a defendant and defendant’s counsel for attendance at a deposition taken pursuant to Rule 15(c) of the Federal Rules of Criminal Procedure are payable by the prosecuting agency. The purpose of such a deposition is to preserve evidence for the prosecution, and all costs should be assigned to the prosecuting agency regardless of the availability of funds appropriated for the Criminal Justice Act. (Decision of Administration Counsel, Department of Justice, November 26, 1975.) The United States Attorney may authorize such expenses in a similar fashion as other litigation expenses.

    Fees and expenses for depositions of fact witnesses, including the cost of recording and transcribing the proceeding, for indigent persons shall be paid by the Department in the same manner as expenses and fees for fact witnesses testifying in court. See above. Fees and expenses for depositions of expert witnesses of the indigent defendant are paid by the AOUSC. 39 COMP.GEN. 133.

[updated February 2018]

3-8.550 Expenses Requiring Prior Authorization

Litigative expenses are “those which result directly from actions of the courts or have a direct connection with the prosecution of a case.” Such costs arise from court reporting, filing, fees, interpreters, consultants, advertising legal notices, transportation of evidence, special masters, and advisory reports from experts who will not serve as witnesses (e.g., appraisals). United States Attorneys may incur litigative expenses without specific authorization from EOUSA. Administrative expenses which the United States Attorneys may approve include the purchase of supplies, books, subscriptions, furniture, and equipment, as well as expenses relating to employee travel, overtime, and utility services, among other things. However, there are various limitations and other criteria that must be considered for legal and administrative expenses, including dollar limitations for purchases made using certified invoice procedures and for purchases made under other delegations of procurement authority.  Lack of sufficient procurement authority in USAOs may require the involvement of EOUSA to place orders and make purchases. Moreover, as discussed in various sections of the JM and in other guidance, certain expenses require prior authorization from EOUSA, including United States Attorney travel outside of the United States Attorney’s federal judicial district (except for travel processed using local travel procedures), actual lodging expenses, premium class travel expenses, and food and entertainment expenses, among other things.

[updated February 2018]

3-8.560 Out-of-Pocket Litigative Expenses

In 38 COMP. GEN. 343, the Comptroller General ruled that when Congress has specifically authorized a particular government agency or corporation to undertake litigation in the pursuance of its duties and responsibilities, i.e., the agency can “sue or be sued”, the out-of-pocket expenses incurred in prosecuting or defending such actions will be properly chargeable to the appropriations of that agency or corporation, even though the Department may prosecute or defend any litigation in which the agency or corporation becomes involved.

Further, those government agencies that lack Congressional authorization to institute suit or defend against legal actions (e.g., Farmers Home Administration) are also prohibited by the Comptroller General from using their appropriation to pay for litigative services. These agencies must rely upon the Department to act in their behalf and, as a result, all out-of-pocket expenses relating to the litigation are properly chargeable to the United States Attorneys’ appropriation as litigative expenses.

Out-of-pocket expenses are generally defined as those expenses incurred by agencies or organizations other than the United States Attorneys for services provided by a private vendor (i.e., persons or firms outside the federal government) which are directly related to conducting the litigation at hand.

[updated February 2018]

3-8.570 Expenses Incurred in a Foreclosure Proceeding Brought on Behalf of a Government Agency or Corporation

In assisting in foreclosure proceedings, the U.S. Marshals Service incurs various out-of-pocket expenses associated with the proceedings. Out-of-pocket expenses are defined as those costs incurred for advertising, property appraisals, abstract supplementation and any other services provided by private vendors which are directly related to conducting the foreclosure proceedings. Intrinsic expenses such as U.S. Marshals’ fees, commissions, mileage, per diem, salaries, etc., are assumed by the U.S. Marshals Service to be constructive earnings and are not expenses that are chargeable to the United States Attorneys’ appropriation.

The U.S. Marshals Service will be reimbursed for its out-of-pocket expenses incurred in foreclosure proceedings in either one of two ways. First, when a third (i.e., non-government) party is the successful bidder for the mortgaged property at the foreclosure sale, the bid is paid into the court and a fund is created. The U.S. Marshals Service is reimbursed from this fund for all appropriate expenses incurred before funding is then disbursed to the first lien creditor, then to other creditors in order of priority or to the court for distribution as the court may direct. The United States Attorneys’ appropriation may not be billed by the U.S. Marshals for out-of-pocket expenses incurred in a third-party sale. If the USAO in the district in which the litigation occurred had inadvertently been billed and paid for any of the out-of-pocket expenses associated with the litigation, the United States Attorney should seek reimbursement for payments from the U.S. Marshals Service.

Secondly, in those cases where the government, through the Farmers Home Administration, is the successful bidder at the foreclosure sale, no fund is created. Instead, all out-of-pocket expenses incurred will be properly chargeable to the United States Attorneys’ appropriation. The

U.S. Marshals Service should submit an itemized voucher for appropriate out-of-pocket expenses incurred in a foreclosure proceeding to the United States Attorney in the district responsible for handling the litigation. The United States Attorney must sign the voucher and certify that the charges billed are appropriate for payment.

[updated February 2018]

3-8.600 Advance Payment of Bills

In accordance with 31 U.S.C. § 3324, prohibiting advance payments of public monies, no disposition of funds should be made for services rendered, purchases made, etc., until the transaction has been accomplished. An exception to this rule is permitted if advance payment is authorized by “other law.” This provision has been interpreted to include state law. Therefore, if state law requires the advance payment of filing fees, for instance, such payments may be issued upon appropriate showing of the requirement of law. A voucher prepared for issuance of an advance payment should specifically identify the statute requiring payment in advance.

[updated February 2018]

3-8.620 Appropriations Chargeable

The appropriation, “Salaries and Expenses, United States Attorneys, Department of Justice,” is chargeable with the expense of operating the USAOs.

The date on which fees are earned, services rendered, orders are placed, or expenses incurred, and not the date of certification of payment, determine the fiscal year from which payment shall be made, except that bills for metered commodities or services such as electricity, telephone, etc., shall be paid from the appropriation current at the end of the billing period.

[updated February 2018]

 

3-8.623 Chargeable to Legal Divisions of the Department of Justice

Expenses chargeable to the Legal Divisions include:

  1. Litigation expenses in cases for which a division has assumed direct responsibility; and
     
  2. Foreign counsel in extradition cases.

[updated February 2018]

3-8.624 Chargeable to United States Courts

Expenses chargeable to the United States Courts include:

  1. Lands Commissioners;
     
  2. Interpreters, except for government witnesses; and
     
  3. Expenses authorized on behalf of indigent defendants.

[updated February 2018]

 

3-8.700 Travel Authority

Travel is governed by the Federal Travel Regulation (FTR), as supplemented by Department of Justice Order 2200.11(I) and Department of Justice Policy Statement 1400.04, Temporary Duty Travel.

[updated February 2018]