Subpoena Processing

I.  Read and Understand the Rules

Section 556(c)(2) of the Administrative Procedure Act provides that an administrative law judge may issue subpoenas authorized by law. 5 U.S.C. § 556(c)(2). See also 5 U.S.C. § 555(d).  

The U.S. Department of Labor, Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges are found at 29 C.F.R. Part 18. Section 18.56, which is quoted below, states the procedures governing issuance of subpoenas relating to matters pending before the United States Department of Labor, Office of Administrative Law Judges (OALJ) or in a longshore or black lung case pending before the District Director, Office of Workers' Compensation programs (OWCP).  It is essential that you read and understand Section 18.56 before requesting and serving subpoenas.

II.  Email Processing

1.  Download.  Download and fill in the applicable information on the subpoena form:

Forms for Email Processing:

Incomplete or illegible subpoenas will be rejected.   Unless ordered otherwise by the presiding judge, however, you may leave the date/time/place fields blank if that information is not yet determined.  Do not fill in the “Signature of U.S. Administrative Law Judge” portion of the form.  This section will be digitally signed and dated once the ALJ approves the subpoena.  When completing the subpoena, the case number listed must be a valid agency (e.g., OWCP) or OALJ case number and not an insurance claim number or internal case file number.

Do Not Put SSNs on Subpoenas:  Parties should not put a Social Security number on the subpoena. See Notice (Chief ALJ Aug. 26, 2005) (OALJ will reject or redact subpoenas bearing a SSN); Administrative Notice (Chief ALJ Dec. 17, 2007) (Partial SSN; or attachment or appendix containing a SSN, are not acceptable alternatives).  Although § 18.56(a)(2)(i)(A) states that “[i]n the event that the case number is an individual's Social Security number only the last four numbers may be used,” no DOL agency uses Social Security numbers as a case number.

2.  Submit for approval through EFS.  For cases currently pending before OALJ, you may submit your subpoena request  using the Department of Labor's eFile/eServe System for Adjudications ("EFS") at efile.dol.gov.  Alternatively, you may submit your subpoena request by email as described below.

You cannot use EFS to request a subpoena for longshore and longshore extension cases still pending before OWCP because EFS can only receive filings on cases currently docketed before OALJ.  Rather, you must use the email procedure described below for such requests.

3.  Submit for approval by email.   Email the subpoena issuance request, with the subpoena form(s) as attachments, to the email box for the District Office in which the presiding judge is located.  If the case is not yet assigned to a judge, send the subpoena request to the District Chief Judge at the office the case is assigned. If you cannot identify which judge or office the case is assigned to, you may mail the request to the National office at OALJ-Filings@dol.gov.

For longshore and longshore extension cases still pending before OWCP with a U.S. claimant, direct the request to the OALJ District Office that services the compensation district suboffice in which the claims is pending. When requesting subpoenas in longshore and Defense Base Act cases pending before the District Director with a non-U.S. claimant, direct the subpoena request to OALJ’s National office.

Washington, DC National and District Offices:

District Offices outside Washington, DC:

Subject line.  The email Subject line must contain, in the following order:

(a) The name of the presiding judge (use UNK if the case is not assigned or you do not know who the presiding judge is)
(b) The name of the parties (e.g., Jones v. Big Co.)
(c) The OALJ case number
(d) If the OALJ case number is unknown or has not been assigned yet, please include the case number from the agency below (e.g., OWCP, OSHA, Wage and Hour)
(e) A notation that this is a Subpoena Request

This is an example of what the Subject line should look like:

Subject: Judge Jane Doe; Jones v. Big Co.; OALJ No. 2020-BLA-05555; Subpoena Request

4.  Native format.   For both EFS and email processing, keep the subpoena form in its native format. These forms have a digital signature field embedded so that, when received, the presiding judge may sign the subpoenas remotely. Scanned versions of these forms cannot be processed electronically.

5.  ALJ approval and service.   If the ALJ approves the subpoenas, they will be digitally signed and emailed back to the requester.  When serving the subpoenas, you must comply with the requirements of 29 C.F.R. § 18.56(b).  Note that the Department of Veterans Affairs requires a VA Form 10-5345 “Request for and Authorization to Release Medical Records or Health Information” to accompany all subpoenas for VA records.

III.  Regular or Express Mail Processing

In view of the COVID-19 pandemic, parties should anticipate that mail processing of subpoena requests may be slower than EFS or email processing.

1.  Download and complete.  Download the applicable subpoena form; complete the applicable information; print the subpoena, and send it to the appropriate judge with a request for issuance of the subpoena.

Forms for Regular Mail Processing:

Incomplete or illegible subpoenas will be rejected. Unless ordered otherwise by the presiding judge, however, you may leave the date/time/place fields blank if that information is not yet determined. Do not, however, fill in the “Signature of U.S. Administrative Law Judge” portion of the form. This section will signed by the judge and dated once the ALJ approves the subpoena.

When completing the subpoena, the case number listed must be a valid agency (e.g., OWCP) or OALJ case number and not an insurance claim number or internal case file number. Parties should not put a Social Security number on the subpoena. Although § 18.56(a)(2)(i)(A) states that “[i]n the event that the case number is an individual's Social Security number only the last four numbers may be used,” no DOL agency uses Social Security numbers as a case number.

If you are unable to download subpoenas forms, you may write to the presiding ALJ to request that blank subpoenas be mailed to you.

2.  Submit for approval.  Mail the request to the applicable OALJ office.

Send the subpoena issuance request to the presiding judge.    If the case is not yet assigned to a judge, send the subpoena request to the District Chief Judge at the office the case is assigned.  If you cannot identify which judge or office the case is assigned to, send the request to the OALJ National Office.

For longshore and longshore extension cases still pending before OWCP with a U.S. claimant, direct the request to the OALJ District Office that services the compensation district suboffice in which the claims is pending. When requesting subpoenas in longshore and Defense Base Act cases pending before the District Director with a non-U.S. claimant, direct the subpoena request to OALJ’s National office.

National Office Address | District Office Addresses

3.  Subject line.  The request for issuance of the subpoena must include:

(a) The name of the presiding judge (use UNK if the case is not assigned or you do not know who the presiding judge is)
(b) The name of the parties (e.g., Jones v. Big Co.)
(c) The OALJ case number
(d) If the OALJ case number is unknown or has not been assigned yet, please include the case number from the agency below (e.g., OWCP, OSHA, Wage and Hour)

4.  ALJ approval and service. If the ALJ approves the subpoena, it will be printed and mailed to the requester. When serving the subpoenas, you must comply with the requirements of 29 C.F.R. § 18.56(b). Note that the Department of Veterans Affairs requires a VA Form 10-5345 “Request for and Authorization to Release Medical Records or Health Information” to accompany all subpoenas for VA records.

5.  Express mail.  If the requester wants the completed subpoena returned via express mail service, the requester should include a prepaid label. If such a prepaid label is not provided, the completed subpoena will be returned via standard US Post Office mailing.

IV.  Raised Seal Subpoenas

OALJ has discontinued issuance of subpoenas with raised seals.

 

Rule - 29 C.F.R. § 18.56

§ 18.56   Subpoena.

   (a) In general.

   (1) Upon written application of a party the judge may issue a subpoena authorized by statute or law that requires a witness to attend and to produce relevant papers, books, documents, or tangible things in the witness’ possession or under the witness’ control.

   (2) Form and contents—

   (i) Requirements—in general. Every subpoena must:

   (A) State the title of the matter and show the case number assigned by the Office of Administrative Law Judges or the Office of Worker’s Compensation Programs. In the event that the case number is an individual’s Social Security number only the last four numbers may be used. See § 18.31(a)(1);

   (B) Bear the signature of the issuing judge;

   (C) Command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and

   (D) Set out the text of paragraphs (c) and (d) of this section.

   (ii) Command to attend a deposition—notice of the recording method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.

   (iii) Combining or separating a command to produce or to permit inspection; specifying the form for electronically stored information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition or hearing, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.

   (iv) Command to produce; included obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.

   (b) Service—

   (1) By whom; tendering fees; serving a copy of certain subpoenas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering with it the fees for 1 day’s attendance and the mileage allowed by law. Service may also be made by certified mail with return receipt. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before the formal hearing, then before it is served on the person to whom it is directed, a notice and copy of the subpoena must be served on each party.

   (2) Service in the United States. Subject to paragraph (c)(3)(i)(B) of this section, a subpoena may be served at any place within a State, Commonwealth, or Territory of the United States, or the District of Columbia.

   (3) Service in a foreign country. 28 U.S.C. 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.

   (4) Proof of service. Proving service, when necessary, requires filing with the judge a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.

   (c) Protecting a person subject to a subpoena—

   (1) Avoiding undue burden; sanctions. A party or representative responsible for requesting, issuing, or serving a subpoena must take reasonable steps to avoid imposing undue burden on a person subject to the subpoena. The judge must enforce this duty and impose an appropriate sanction.

   (2) Command to produce materials or permit inspection—

   (i) Appearance not required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition or hearing.

   (ii) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or representative designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

   (A) At any time, on notice to the commanded person, the serving party may move the judge for an order compelling production or inspection.

   (B) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.

   (3) Quashing or modifying a subpoena—

   (i) When required. On timely motion, the judge must quash or modify a subpoena that:

   (A) Fails to allow a reasonable time to comply;

   (B) Requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person—except that, subject to paragraph (c)(3)(ii)(C) of this section, the person may be commanded to attend the formal hearing;

   (C) Requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

   (D) Subjects a person to undue burden.

   (ii) When permitted. To protect a person subject to or otherwise affected by a subpoena, the judge may, on motion, quash or modify the subpoena if it requires:

   (A) Disclosing a trade secret or other confidential research, development, or commercial information;

   (B) Disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party; or (C) A person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend the formal hearing.

   (iii) Specifying conditions as an alternative. In the circumstances described in paragraph (c)(3)(ii) of this section, the judge may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

   (A) Shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

   (B) Ensures that the subpoenaed person will be reasonably compensated.

   (d) Duties in responding to a subpoena—

   (1) Producing documents or electronically stored information. These procedures apply to producing documents or electronically stored information:

   (i) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

   (ii) Form for producing electronically stored information not specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

   (iii) Electronically stored information produced in only one form. The person responding need not produce the same electronically stored information in more than one form.

   (iv) Inaccessible electronically stored information The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the judge may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of § 18.51(b)(4)(iii). The judge may specify conditions for the discovery.

   (2) Claiming privilege or protection—

   (i) Information withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as hearing-preparation material must:

   (A) Expressly make the claim; and

   (B) Describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

   (ii) Information produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as hearing-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the judge in camera for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

   (e) Failure to obey. When a person fails to obey a subpoena, the party adversely affected by the failure may, when authorized by statute or by law, apply to the appropriate district court to enforce the subpoena.