GN DAL03330.015 Guidelines on Subpoenas and Court Orders


A. Introduction

SSA Field Offices (FO) and Disability Determination Services (DDS) are frequently served with subpoenas or court orders that purportedly require SSA and DDS employees and medical consultants to produce and possibly testify about information concerning a specific number holder (NH) contained in the agency's system of records or to testify about their observations on a claimant or about SSA programs.

Subpoenas requesting the personnel records of SSA/DDS employees are outside the scope of this transmittal. Such subpoenas should be faxed immediately to the Center for Human Resources. Similarly, this transmittal does not address the handling of a summons in a civil action, a document that signals the initiation of a lawsuit. If you receive a summons, please follow the instructions in GN 03106.020.

1. The difference between subpoenas and court orders

A subpoena is usually issued by an attorney, the clerk of a court at an attorney's request, or a courts record company on behalf of the attorney. When documents are requested, the subpoena is usually designated as a “subpoena duces tecum.” Subpoenas issued to SSA FOs or DDSs usually direct a “custodian of records” or a specific employee to produce records at a deposition in an attorney's office or in court, and perhaps to provide testimony regarding those records. Less often, the subpoena will only direct the employee to testify regarding general SSA program matters or the employee's knowledge of a claimant or beneficiary.

Usually, a deposition is simply a “records deposition,” in which the SSA employee states under oath that the records produced are from the file of the NH. An attorney may specify in a cover letter accompanying the subpoena that if the records are provided prior to the time of the deposition, appearance at the deposition is unnecessary.

A judge, on the other hand, must sign a court order. A subpoena signed by the clerk of a court is not a court order. The number of court orders that FOs receive is very small compared with the number of subpoenas received.

2. Differentiating between the two main types of subpoenas and court orders

Subpoenas and court orders may be grouped into two categories, depending on the type of information requested. Different regulations apply to each.

a. Personal program information from the files of a Social Security beneficiary, claimant, wage earner, or other NH.

Disclosure of this information is subject to Regulation No. 1 (20 C.F.R. Part 401). In general, such information cannot be disclosed without the affected individual's written consent unless a routine use provides for its disclosure, the Commissioner of Social Security is a party to the proceeding, or the information is necessary for due process in a criminal proceeding. See GN 03305.001B for discussion of disclosure with consent.

b. Nonpersonal program information (whether or not it is related to a specific NH's record), or personal information about a NH gained through the performance of official duties.

Some subpoenas and court orders simply request an SSA employee to testify about program matters in general, such as the disability determination process; program matters as they relate to a specific NH; or the employee's observations of a specific NH.

3. Revised Touhy regulations

Effective April 13, 2001, revised regulations prohibit testimony by SSA/DDS employees in most third party suits (cases in which SSA is not a party). These requests, which are often called “Touhy” requests after a Supreme Court case of that name, are governed by the regulations at 20 C.F.R. 403, rather than 20 C.F.R. Part 401. See U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Touhy Regulations were revised and published in the Federal Register on January 12, 2001. See 66 Federal Register 2805 (2001). For SSA purposes, the revised regulations replace those found at 45 C.F.R. § 2.1 et seq. (2000), which still apply to the Department of Health and Human Services.

Under the revised Touhy regulations, in legal proceedings where SSA is not a party, testimony by an employee of SSA is not permitted unless prior approval has been granted by the Commissioner or the designee, the General Counsel. Testimony for these purposes includes any sworn statement, either oral or written. (This restriction also applies to SSA employees signing the affidavits that many attorneys and court records companies send to be attached to a copy of the claims folder.)

Exceptions to these regulations apply where Congress has made the testimony request; where the employee appears in court in a private capacity; or where the employee is appearing as an expert witness in connection with professional and consultative services as an approved outside activity. See GN 03330.015 and EM-01066REV, dated April 18, 2001, for more information. Additionally, these regulations do not apply to requests for testimony in Social Security appeals when requested by SSA Administrative Law Judges. See GN 03103.160.

NOTE: The Touhy restrictions on testimony in third party litigation also applies to DDS employees, DDS medical consultants, former SSA employees, and agents of SSA.

B. Procedures to follow upon receipt of a subpoena or court order

  1. 1. 

    Accept service of the subpoena or court order unless a specific exception applies.

    Subpoenas must be accepted if a recipient is not specified. This includes subpoenas directed to an unnamed person such as “Manager” or “Custodian of Records”. However, do not accept a subpoena or other compulsory process requiring disclosure of information if the document is directed simply to SSA, its Commissioner, or any Central Office official. Inform the person serving the subpoena or court that you lack authority to accept it; see GN 03330.010B.2.

    NOTE: If a specific employee is named in the subpoena (e.g., the FO manager or a CS), and that person is not in the office at the time service is attempted, another employee should not accept the subpoena on the other person's behalf. This is not a “refusal” to accept a subpoena, because a subpoena that names a specific person can only be properly served on the named person.

    Do not transfer subpoenas to other FOs or other SSA components; see GN 03330.010B.4.

    With respect to subpoenas received in the mail, employees should not sign a waiver of personal service. SSA requires personal service. This does not mean, however, that you can disregard such subpoenas; you must follow the instructions outlined below.

  2. 2. 

    Record the receipt of the subpoena or court order and all pertinent information.

    Attached is a Subpoena/Court Order Questionnaire to use for recording pertinent information about the subpoena or court order. This form assists you in relaying information to the Regional Office (RO). Please reproduce the form locally as needed.

  3. 3. 

    Immediately email the subpoena or court order, the Subpoena/Court Order Questionnaire, and any other documentation served with the subpoena to the Privacy Act Coordinator (PAC) in the Center for Disability and Programs Support (CDPS) in the Dallas RO. Contact information for the current PAC is listed on the Dallas CDPS Program Support Topics list.

    The PAC in CDPS will review the subpoena, consult with the Office of the General Counsel when appropriate, determine what action needs to be taken, and advise the FO if it needs to take further action. Sometimes the FO is instructed to develop consent or process a request for uncertified or certified records.

C. Other FO/DDS responsibilities related to subpoenas and court orders

1. Claims folder location and retrieval

If the subpoena or court order requires the production of records contained in the claims folder of a NH (such as disability records), the FO/DDS is responsible for ascertaining the location of the claims folder(s). Do not delay referring the subpoena and the questionnaire to the PAC in CDPS. Also, do not request that the claims folder be transmitted to the FO until the PAC instructs you to arrange for the transmittal.

2. Copying documents in a claims folder for certification

Under the Touhy Regulations, SSA does not provide testimony in court or at a deposition to authenticate copies of documents from a NH's claims folder. Rather, an official in the Dallas RO certifies the authenticity of the copies or, where appropriate, extracts from computer records. The FO is responsible for producing single side copies of permitted records, sanitizing/redacting copies, then forwarding sanitized copies via email to the PAC in Dallas CDPS in a timely manner. Contact information for the current PAC is listed on the Dallas CDPS Programs Support Topics list. Similarly, the FO is responsible for copying permitted records in the claims folder of a deceased NH.

3. Instructing employees in the importance of reporting immediately the receipt of a subpoena or court order

A subpoena or court order is a legal document and must not be ignored; therefore, it is essential the FO/DDS manager ensures that all employees understand the importance of reporting immediately the receipt of such a document, whether it is personally served, faxed, or arrives in the mail. Further, when a PAC in Dallas CDPS requests a FO provide additional information or other assistance, this should be handled on a priority basis unless the FO is advised otherwise. Often the time between the service of the subpoena and the date for the appearance is extremely short, and action must be taken immediately to resolve the matter.

D. Responsibilities of the Dallas Regional Office

1. Responding to routine subpoenas

In certain uncomplicated situations, e.g., where service is proper and the only problem is the lack of the NH's consent, the Dallas PAC may either telephone the requesting attorney or other individual responsible for the issuance of the subpoena or the PAC may instruct the FO to develop valid consent or explain the consent requirement to the requester.

2. Referring non-routine subpoenas and all court orders to OGC

At the discretion of the PAC in Dallas CDPS, a subpoena may be referred to OGC at ^OGC OGL Subpoenas for consultation and/or a formal letter of response. The PAC will refer all subpoenas for testimony and court orders to OGC.

3. Determining the validity of the consent

The PAC in Dallas CDPS is responsible for determining and advising receiving FOs if the written consent, often attached to the subpoena, meets SSA's requirements in GN 03305.003.

The PAC may consult OGC if uncertain whether the consent provided meets the requirements.

4. Providing records in response to a subpoena or court order where the NH is deceased

SSA may generally disclose non-tax return information about a deceased NH as long as care is taken not to disclose information that would violate the privacy rights of a living person. Therefore, the PAC in Dallas CDPS will review requests for deceased NH's information to determine which records may be disclosed under the guidelines in GN 03315.010 and advise the FO on how to respond or process the request for non-tax return records. Generally, Central Office process requests for tax return records and SSN information about deceased individuals.

E. OGC responsibility

OGC will inform the PAC in Dallas CDPS of any action they take in response to a subpoena or legal request. OGC will share a copy of their written response to requests with the PAC and copy the receiving FO/DDS or the PAC will share a copy of OGC's response with the receiving FO/DDS, as appropriate.




Type of Document (i.e., subpoena or court order):______________________________________


When did you receive the request? Date: __________ / __________ / __________


What is the name of the legal matter for which records and/or testimony are requested? (e.g., Doe v. Jones)______________________________________


Where is the case located? (e.g., Dallas County Court)______________________________________


Who is the requester?______________________________________


What is the requester seeking? (i.e., records, testimony, or both)______________________________________


Who is the requester seeking information about (name and SSN)?______________________________________


Is the individual: Deceased? __________ A minor? __________


Name and title of person referring subpoena or court order to the RO:______________________________________


Office Location/Code/Component:______________________________________


Email Address:______________________________________

List of Regional and National PACs: Office of the General Counsel FOIA Privacy Coordinators

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GN DAL03330.015 - Guidelines on Subpoenas and Court Orders - 02/12/2024
Batch run: 02/12/2024