Last Update: 10/13/2016 (Transmittal I-2-191)
HA 01250.082 Noncompliance With
a Subpoena
Renumbered from HALLEX section I-2-5-82
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 HA 01250.078.
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.
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.