SSA - POMS: GN DAL03330.015 - Guidelines on Subpoenas and Court Orders

A. Introduction

SSA Field Offices (FO) are frequently served with subpoenas or court orders that purportedly require SSA employees 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 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 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. For discussion of disclosure with consent, see GN 03305.001B.

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 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. 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.
Accept service of the subpoena or court order unless a specific exception applies. Accept subpoenas and court orders that are directed to unnamed agency employees, such as “Keeper of the Records,” “Custodian of the Records,” or “Office Manager.”

Exceptions:
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  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.
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  Some subpoenas are addressed to a specific named employee at the FO. Only that employee may accept such a subpoena - another employee should not accept the subpoena on the other person's behalf. This is not a "refusal to accept" because only the specific person named may be properly served.
Management should designate who in the FO may accept a subpoena or court order (generally a member of management, if possible). Do not transfer subpoenas or court orders to other FOs or other SSA components; see GN 03330.010B.4.

Process servers may ask employees to complete or sign a statement or form (e.g., waiver of personal service, admission of service, etc.). Do not complete, submit, or sign any such statement or form unless explicitly instructed to do so by the Office of the General Counsel (OGC). Such action may limit our options concerning SSA’s response to the subpoena.
2.
Upon being served:
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  Upon being served a subpoena, scan and email the subpoena to ^OGC OGL Subpoenas. If your office receives a court order, scan and email the court order to ^OGC OGL Regional Disclosure. For both subpoenas and court orders, include the information from subsection C in the body of the email. OGC will evaluate and advise, as necessary, concerning SSA's response to the matter.
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  In most cases, the FO will not need to take any further action after emailing the court order or subpoena to OGC. OGC will notify the FO if further action by that office is necessary. For example, OGC may advise the FO that a consent form submitted with a subpoena is valid and that disclosure of the records described on the consent form by the FO is appropriate.
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  If the folder is not in your location, do not automatically request it. Many subpoenas may be vacated or disclosure handled without the need for the folder. OGC will notify the FO if the folder is needed.
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  A subpoena may be accompanied by a fee. When you email the subpoena to OGC, you should also notify OGC that a fee was submitted. OGC will advise what to do with any fee submitted.

C. Subpoena/Court Order Questionnaire

When emailing a subpoena or court order to OGC, include the following information in your email.

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

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

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

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

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Who is the requester? ______________________________________

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

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

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Is the individual: Deceased? __________ A minor? __________

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

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Office Location/Code/Component: ______________________________________

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Email Address: ______________________________________

Social Security

Program Operations Manual System (POMS)

GN DAL03330.015 Guidelines on Subpoenas and Court Orders