I-2-5-82.Noncompliance With a Subpoena

Last Update: 10/13/16 (Transmittal I-2-191)

If an individual refuses or fails to comply with a subpoena, the administrative law judge (ALJ) will consider any change in circumstance since issuing the subpoena and re-evaluate whether the evidence or facts requested are reasonably necessary for the full presentation of the case. See generally Hearings, Appeals and Litigation Law (HALLEX) manual I-2-5-78.

If the ALJ finds the information is reasonably necessary for the full presentation of the case, he or she will prepare a memorandum to the Office of the General Counsel (OGC) Regional Chief Counsel, requesting enforcement of the subpoena. In the memorandum, the ALJ will describe in detail:

The circumstances of the case;
The evidence or facts sought; and
Why the evidence or facts are reasonably necessary to decide the case.

The ALJ will provide the memorandum, a copy of the subpoena, any certified mail receipts, and any other relevant document(s) to the Hearing Office Chief Administrative Law Judge (HOCALJ). If the HOCALJ agrees with the request, he or she will forward the information to the Regional Chief Administrative Law Judge (RCALJ) for additional review. If the RCALJ agrees with the request, he or she will forward the information to the OGC Regional Chief Counsel.

NOTE:

If either the HOCALJ or RCALJ disagree with the request, he or she will notify the ALJ to proceed with claim adjudication without the information. The ALJ will inform the claimant and appointed representative, if any, that the information is not available and explain that the ALJ will adjudicate the claim without the requested information.

OGC will review the request and determine whether to seek a Federal court order to enforce the subpoena. If OGC obtains an order from the court, the failure of any subpoenaed individual to appear as a witness at a hearing or provide requested documents or facts may result in contempt proceedings. However, if OGC declines to seek a court order to enforce a subpoena, or the court denies a motion to compel compliance with a subpoena, OGC will notify the Office of Hearings Operations to proceed with claim adjudication without the information. The ALJ will inform the claimant and appointed representative, if any, that the information is not available and that the ALJ will adjudicate the claim without the requested information. The ALJ will then proceed to adjudicate the claim.