3-8.100
Operational Expenses
The Director of the Executive Office for United States Attorneys 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 the guidelines and regulations set forth by the
various statutes and the Department of Justice.
3-8.130
Expenditures and Obligations Under the Anti-Deficiency Act
Cross reference(s):
USAM §§ 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 (Act) states that: 1) the government may not
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). This means that you
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.
You should be particularly mindful of this restriction if you 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
your office's litigation budget or beyond the current fiscal year. If you
ever need an exception to this restriction, you must consult with and obtain
prior approval from the Executive Office for United States Attorneys (EOUSA)
before executing the agreement.
Such a consultation will give EOUSA the ability to review the
feasibility and legality of such expense and an opportunity to consult with
Department of Justice officials and Congress to obtain approval.
This restriction does not apply to your 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 March 2001]
[cited in USAM 3-1.200]
3-8.210
Depositions
Depositions should be taken whenever possible, to reduce expenditures.
Depositions should be taken before notarial officers or other officer
authorized for administering oaths.
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 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. Sec. 5533. The salaried federal reporter is not controlled by the
court-reporting law (see 28 U.S.C. Sec. 753) 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. Authorization can be
obtained to pay for the services of interpreters and stenographers if none
are available in the embassy or consulate, upon approval of the Deputy
Director, Financial Management Staff, EOUSA.
The Office of International Affairs in the Criminal Division, or the
Office of Foreign Litigation 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, Justice Management Division (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 a litigative expense of the United States Attorneys' office.
[cited in USAM 3-1.200]
3-8.220
Extradition Expenses
The Criminal Division, Office of International Affairs, will provide
specific guidelines, and suggestions, as well as the necessary clearances
for all extradition proceedings.
All other information relating to extradition should be obtained from
EOUSA, as well as the other relevant sections of other titles of the United
States Attorneys' Manual.
3-8.230
Foreign Counsel
United States Attorneys have authority to incur expenses to hire
foreign counsel. Contact the Financial Management Staff, EOUSA, for
assistance.
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 in the Criminal Division or the Office of
Foreign Litigation 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 the Office of International Affairs in the Criminal Division, or
the Office of Foreign Litigation 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. Sec. 1821.
[cited in USAM 3-1.200]
3-8.240
Payment of Travel Expenses of Defendant and Counsel to Attend
Depositions Taken at the Instance of the Government
18 U.S.C. Sec. 3503(c) specifies that whenever a deposition is taken at
the instance of the government, the court may direct that the expenses of
travel and subsistence for the defendant and his/her attorney for attendance
at the deposition be paid by the government. In those instances where the
United States Attorney's Office is the prosecuting office and is directed by
the court to pay such costs, the expenses will be considered to be
litigative expenses chargeable against the United States Attorneys'
appropriation. 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 regulation would be
reimbursed.
3-8.250
Interpreters
The Court Interpreters Act of 1978 requires the Director,
Administrative Office of the U.S. Courts to "establish a program to
facilitate the use of interpreters in courts of the United States." The
Administrative Office of the U.S. Courts 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 United States Attorney 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 requested from the Special
Authorization Unit (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
Administrative Office of the U.S. Courts. 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 Administrative Office of the U.S.
Courts 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. Secs. 2510 to 2520.
3-8.280
Payment of Expert Witnesses Appointed by the Court Under 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.
- 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. Sec. 259 (1979). In those
instances where the Department of Justice is the litigating agency, the
expenses of the court-appointed expert witness are payable from the
appropriation "Fees and Expenses of Witnesses."
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 of Justice will be paid from the
appropriation "Fees and Expenses of Witnesses."
Authorization and Payment Procedures. When the expert is
appointed by the court, the United States Attorney should submit to the
Justice Management Division an OBD-47 accompanied by a copy of the court
order appointing the expert witness under Fed.R.Evid. 706.
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 indigent defendant. The expenses of the
expert will be paid by the Administrative Office of the U.S. Courts from
funds appropriated for the implementation of the Criminal Justice
Act.
[updated November 1999]
3-8.300
Phasing Down United States Attorney Operations During a Lapse in
Appropriations
In the event there arises a situation in which an appropriation of
funds may not be available for operation of the Department of Justice, the
United States Attorneys' offices will proceed under the guidelines set forth
below, in compliance with the Antideficiency Act, 31 U.S.C. Sec. 1341. The
Antideficiency Act, as construed by the Attorney General, provides that, in
the absence of appropriation, no obligation can be incurred except for the
protection of life and property, the orderly suspension of operations or as
otherwise authorized by law.
3-8.311
Lapse in AppropriationsNotification
In the event of an impending lapse in appropriations, the Assistant
Attorney General for Administration will notify all Department personnel of
pending furloughs and phasing down operations. The EOUSA will then contact
each United States Attorney with more specific information and instructions
and will keep them aware of any more current information available from the
JMD and the Office of Management and Budget and specific provisions of the
Congress.
3-8.312
Lapse in AppropriationsExcepted/Non-Excepted Personnel
Upon notification of a pending lapse in appropriations, the United
States Attorney shall identify employees who are necessary to sustain legal
operations as defined in USAM 3-8.321. At
the instance of a lapse in appropriations, only those employees necessary to
sustain the legal operations defined in USAM
3-8.321 shall be permitted to continue working. All other employees may
only remain in duty status to the extent necessary to facilitate an orderly
phasedown of non-emergency activities. The United States Attorneys shall
identify the individual employees who are considered excepted and shall
notify each employee of his/her status, in the event of a lapse in
appropriations. The United States Attorney has authority to recall
individual employees as the need arises and to substitute furloughed
employees for non-furloughed employees if the furloughed employees are able
to assume the case load designated as "emergency.
" The United States Attorney does not have the authority to recall
employees because of the financial hardships they may be suffering.
3-8.313
Lapse in AppropriationsFurloughs
Any employees designated non-excepted will be furloughed upon a lapse
in appropriations. During this time the employee will be in a non-pay,
non-duty status. The employee will be notified by his/her supervisor or
through some other communication channel when to return to work.
Reduction-in-force procedures (5 C.F.R. Part 351) will be followed whenever
an employee must be furloughed for more than 30 days.
3-8.314
Travel During a Lapse in Appropriations
All travel directly relating to criminal and civil litigation will
continue. All other travel, although previously authorized, will be
cancelled, upon a lapse in appropriations. Any employee on travel when a
funding lapse occurs should immediately contact his/her superior. If time is
needed to seek a continuance or the employee is involved with a matter that
poses a life or property constraint, see USAM
3-8.321, he/she will receive further instructions from his/her superior.
In all other cases, the employee will be required to return home. Return
travel and per diem/subsistence incurred in returning are authorized.
3-8.315
Payment of Fees and Expenses of Witnesses During a Period of Lapsed
Appropriations
Use of witnesses, and any obligations incurred as a result, are
authorized in accordance with legal operations as defined in USAM 3-8.321.
3-8.321
Legal OperationsMatters to be Continued During a Lapse in
Appropriations
All litigation and investigations which are essential to the protection
of life and property are to continue.
- Criminal Matters.
These should continue
without interruption as an activity essential to the safety of
human
life and the protection of property.
Civil Matters. Civil litigation will be curtailed or
postponed, to the extent that the Courts will permit such an
approach
without harm to the interests of the United States. In the event
that
such an approach is not possible, civil litigation will continue
without
interruption as an activity essential to the protection of
property.
[cited in USAM 3-8.312;
3-8.314;
3-8.315]
3-8.400
Appraisers and Masters
The Department of Justice pays for the compensation of special masters
or appraisers 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 reasonable compensation.
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.
Justice Management Division Form OBD-47, "Request and Authorization for Fees
and Expenses of Witnesses," will be used. The attorney should note on the
form that it is being used for a special master. The division administrative
officer will forward the OBD-47 to Financial Operations Services, and
administrative officers for United States Attorneys' Offices, and to the
U.S. Marshal's Office for that district.
Fees and expenses of land commissioners will not be paid by the
Department. Land commissioners appointed pursuant to Rule 71A, Federal Rules
of Civil Procedures are payable from funds appropriated to the judiciary.
3-8.420
Court Reporters
As provided in 28 U.S.C. Sec. 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 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. Court Reporter
Manual, Chapter XX at 10.
[updated September 1998]
3-8.430
Employment of Independent Reporters
Departmental 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.
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 of Justice
appropriations may not be used for additional reporters, the Director of the
Administrative Office of U.S. Courts 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 the Administrative Office for U.S. Courts.
3-8.450
Grand Jury Reporting
Grand jury reporting may be performed by an employee of the United
States Attorney's Office (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. Sec. 5533.
3-8.510
Transcripts
It is the policy of the Executive Office for United States Attorneys
that hourly, daily, or expedited transcripts should not be ordered unless
absolutely necessary. All orders for hourly or daily transcripts must be
expressly authorized in advance by the United States Attorney or First
Assistant United States Attorney, and documentation of such authorization
must accompany all payment vouchers for hourly or daily transcripts.
Ordinarily, only one transcript should be purchased in any case, except
Court of Claims cases or depositions. Any decision by the United States
Attorney to order more than one transcript must be based on absolute
necessity for the availability of funds. Transcripts should only be
purchased as required, for heads of the legal divisions of the Department of
Justice and their assistants, United States Attorneys and their assistants,
and other attorneys assisting in the case. Other government agencies
interested in obtaining transcripts should make arrangements for purchase
directly from their own appropriations. No Department of Justice funds are
available for payment of transcript furnished to the court, either at its
request or that of the government. The official copy in the files of the
clerk of the court should be used by the court in these cases.
3-8.520
Expenses Incurred on Behalf of Indigents
Following is a listing of expenses which may be incurred for persons
proceeding in forma pauperis, and the responsibility for such expenses.
- Fact Witnesses.
Costs relating to subpoena and fees
of indigent defendants witnesses are the responsibility of the Department of
Justice and payable at the rates prescribed for witnesses pursuant to 28
U.S.C. Sec. 1821.
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
Administrative Office of the U.S. Courts. 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
are paid by the Administrative Officer of the U.S. Court. The Department of
Justice 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.
Mental Examinations for Indigent Persons. Expenses for
examinations under 18 U.S.C. Sec. 4244 to determine a defendant's mental
competency to stand trial are always the responsibility of the Department of
Justice. Expenses for examinations to determine a defendant's mental
responsibility at the time of the alleged offense are paid by the
Administrative Office of the U.S. Courts except when the request is made by
the United States, in which case the Department of Justice is responsible.
See Department of Justice Order 2110.20A (February 1999).
Depositions. Expenses for travel and subsistence of a
defendant and defendant's counsel for attendance at a deposition taken
pursuant to Rule 15(c) Fed.R.Crim.P. 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 of Justice 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
Administrative Office of the U.S. Courts. 39 COMP.GEN. 133.
[updated November 1999]
3-8.540
Notary Expenses of Employees
Officers and employees of the Department of Justice who are required to
serve as notaries public in connection with the performance of public
business may be allowed their expenses under the following conditions:
- Performance of notarial duties must have been ordered as part
of the duties of the employee.
- If the individual first qualified as a notary for a personal
purpose, and subsequently was required to serve officially, such
percentage of his/her expenses shall be paid as the official use of
his/her authority bears to the use of the notarial powers, the
individual certification being acceptable as to percentage.
- The expense of obtaining commissions includes bond premiums,
official seal, etc.
- Payments subsequent to initial qualifications are limited to
actual expenses of maintaining notarial authority.
- Funds available for personal services or general administrative
expenses for the fiscal year in which the expense was incurred shall be
used.
- Receipts are only required for amounts in excess of
$15
Procedures for reimbursement of qualification expenses are established
in Department of Justice Order 2110.7A (July 15, 1975). Payments are made by
use of SF-1164, Claim for Reimbursement for Expenditures on Official
Business.
3-8.550
Expenses Requiring Prior Authorization
Litigative expenses are defined in OBD Order 2100.1A (April 6, 1976),
as "those which result directly from actions of the courts or have a direct
connection with the prosecution of a case." They include 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
the Executive Office for United States Attorneys.
Administrative expenses which the United States Attorneys may approve
include the purchase of supplies (as approved under established procurement
instruments), employee travel, overtime, and changes to telephone service
(except complete system overhaul).
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 of
Justice 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 of Justice 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
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.
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 the 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 the fund 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
United States Attorney's office 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. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |