Section 16.22(c) requires that the party making a demand for oral testimony must provide the United States Attorney with an affidavit, or, if that is not feasible, with a statement setting forth a summary of the oral testimony sought by the demand and its relevance to the proceedings. This statement should be requested in writing. If authorization for oral testimony is subsequently granted, it must be no broader than the scope of the demand as summarized in such affidavit or statement.

Where information other than oral testimony is sought by the demand, Section 16.22(d) requires the United States Attorney to request a statement setting forth a summary of the information sought and its relevance to the proceedings. This statement should be requested in writing. The recommended practice is that the authorization for release of information other than oral testimony be no broader than the demanding party's request, absent some special circumstances.

Negotiation with the party making the demand is, in many cases, appropriate. Often the issues can be narrowed so that authorization is possible or the demand may be withdrawn once the government's relevant concerns and supporting arguments are raised and discussed. Quite often a potentially lengthy litigative battle can be resolved without excess time or cost through negotiations. Such negotiations are actively encouraged by the Department. 28 C.F.R. § 16.24(c).

If the party making the demand fails to comply with the Department’s Touhy regulations by furnishing the required affidavit or summary, the United States Attorney or his/her designated assistant should point out the need for compliance with these procedures and should consider appropriate options to enforce the Touhy regulations. Those options include simply declining to authorize the disclosure, objecting to the demand, or moving to quash any subpoena accompanying the demand. See, e.g., Edwards v. U.S. Dep't of Justice, 43 F.3d 312, 316 (7th Cir. 1994); United States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007); United States v. Wallace, 32 F.3d 921, 929 (5th Cir.1994); United States v. Allen, 554 F.2d 398, 406-07 (10th Cir. 1977); Davis v. Braswell Motor Freight Lines, Inc., 363 F.2d 600, 603 (5th Cir. 1966); Marcoux v. Mid-States Livestock, 66 F.R.D. 573, 575 n.1 (W.D. Mo. 1975).

If the subpoena originates from a state court, it should be noted that the Department’s Touhy regulations have the force of federal law and must be followed even in state court proceedings and that sovereign immunity bars direct enforcement by the state court of the subpoena against the Department or its employees. See, e.g., Edwards v. U.S. Dep't of Justice, 43 F.3d 312, 316 (7th Cir. 1994) (“the review action must be in federal court pursuant to 5 U.S.C. § 702, rather than in a state court that lacks jurisdiction”); In re Elko County Grand Jury, 109 F.3d 554 (9th Cir. 1997); Smith v. Cromer, 159 F.3d 875, 879 (4th Cir. 1998).

If the demand or subpoena is not proper in view of any applicable privileges or the rules of the proceeding, including the rules of discovery and evidence, it should be resisted on that ground. In such cases, if the party issuing the demand has followed the Touhy procedures but is unwilling to limit the appropriate scope of the testimony through negotiation, the United States Attorney or his/her designated assistant should take prompt, appropriate steps, as may be necessary, including simply declining to authorize the disclosure, objecting to the demand, or moving to quash any subpoena accompanying the demand. See 28 C.F.R. § 16.24(c).

For both federal court and state court subpoenas, if a requester challenges the scope of the authorization in court, the assigned attorney should consider arguing, if governing precedent allows, that an arbitrary and capricious standard should apply to review of the Department’s Touhy decision under the Administrative Procedure Act. Compare COMSAT Corp. v. National Science Foundation, 190 F.3d 269, 277 (4th Cir. 1999) (Administrative Procedure Act is sole avenue of review of agency decision regarding nonparty subpoena compliance; deferential Administrative Procedure Act standard of review applies) with Watts v. SEC, 482 F.3d 501, 508-10 (D.C. Cir. 2007) (for federal court actions, district court can review under federal discovery rules nonparty subpoenas against federal agencies and employees; standard of review under Federal Rules of Civil Procedure applies).

If a state court subpoena cannot be resolved amicably, including when a state court or litigant seeks to enforce the subpoena, the assigned attorney should timely remove the proceeding to federal court and seek to overturn the order on grounds of sovereign immunity. The defense of sovereign immunity remains after removal, as removal under the federal officer removal statute provides the federal employee with a federal forum without a change in the substance of the law and defenses applicable to the action removed (a concept sometimes referred to as the derivative jurisdiction doctrine). 28 U.S.C. §§ 1442(a), 1446(g); In re Elko County Grand Jury, 109 F.3d 554, 556-57 (9th Cir. 1997); Edwards v. U.S. Dep't of Justice, 43 F.3d 312, 316 (7th Cir. 1994) (“the review action must be in federal court pursuant to 5 U.S.C. § 702, rather than in a state court that lacks jurisdiction.”). It has been held that the only legitimate recourse for a state court litigant to obtain judicial review of the Department’s response to a Touhy demand is through a lawsuit in federal court under the Administrative Procedure Act. Edwards, 43 F.3d at 316; Smith v. Cromer, 159 F.3d 875, 881 (4th Cir. 1998).

[Updated April 2018]