It is the lack of authorization, rather than the issuance of a denial, that often precludes compliance with a demand at the proceeding. The regulation provides that if a subpoenaed official has not received authorization by the date of the appearance, the assigned attorney, where necessary, should respectfully inform the court that the subpoenaed official cannot comply. In a case in which the United States is a party and is represented by the United States Attorney or a Department attorney, it is presumed that the attorney in charge of that case or matter represents the subpoenaed Department employee in his/her official capacity for this purpose. In a case in which the United States is not a party, the United States Attorney should assign an attorney to provide representation to the subpoenaed Department employee in his/her official capacity for this purpose.

28 C.F.R. § 16.27 contains instructions on the procedures to be followed when a Department decision concerning a demand has not yet been made. Where necessary, the responsible attorney should provide the court with a copy of the applicable regulations and state that the demand has been referred for the prompt consideration of the appropriate Department official. The assigned attorney should cite United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), in which the Supreme Court held that an employee may not be held in contempt for failing to produce the demanded information where appropriate authorization had not been given. 28 C.F.R. § 16.27, 28. The assigned attorney should consult applicable court rules and requirements and local practice to determine whether it is appropriate and necessary for the attorney to file a motion or appear in court in these circumstances.

[Updated April 2018]