Requests for authorization pursuant to the regulations are initiated when an employee of the Department informs the United States Attorney for the district in which the issuing authority for the demand is located of receipt of the demand. 28 C.F.R. § 16.22(b).

When an employee or former employee receives a subpoena or other demand in a proceeding in which the United States is not a party, the regulations direct the employee or former employee, immediately upon receipt of the demand, to notify the office of the United States Attorney for the district in which the “issuing authority” is located. 28 C.F.R. § 16.22(b). If the individual is or was employed by a litigating component and the demand concerns the individual’s work for the component, the individual should immediately notify the component’s Touhy Officer, who in coordination with the individual, will notify the United States Attorney. The United States Attorney for the district where the “issuing authority” is located is responsible for taking the steps to ensure that the procedures in the regulation are followed. Id. The “issuing authority” ordinarily should be understood to refer to the court or other authority that would be expected to issue either an order enforcing compliance with the demand or an order quashing the demand. This understanding of “issuing authority” allows the demand to be handled by the office of the United States Attorney in the district where any formal legal action, such as the filing of a motion to quash or a response to a motion to compel, would likely be taken. The “issuing authority” as used in the regulations thus should not be understood to carry the same meaning as the “issuing court” as defined in Federal Rule of Civil Procedure 45(a)(2), which often is not the district where action would be taken to enforce or resist compliance with a demand.

If the notification is made to the United States Attorney in a district that is not the “issuing authority,” that office should immediately refer the notification to the office of the United States Attorney where the issuing authority is located.

If other United States Attorneys’ offices or other divisions of the Department may have an interest in the proceeding, the office of the United States Attorney where the issuing authority is located should also consult, as appropriate, with the offices of the United States Attorney in those other districts and with the other divisions and the Civil Division, Federal Programs Branch.

All employees are directed to notify the appropriate USAO and their component’s Touhy Officer immediately upon receipt of the subpoena or other demand. Unless the United States Attorney is made aware of the demand, the procedures prescribed in the regulations cannot be put into effect; thus, it is urgent that each USAO and the component Touhy Officer be notified promptly by the employee receiving the demand and that each USAO and component establish procedures to receive such notification and to take the appropriate steps under the regulations.

[Updated April 2018]