[Code of Federal Regulations]
[Title 28, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR68.25]

[Page 229-230]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
              CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
 
 PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF 
ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD--Table of Contents
 
Sec. 68.25  Subpoenas.

    (a) An Administrative Law Judge, upon his or her own initiative or 
upon request of an individual or entity before a complaint is filed or 
by a party once a complaint has been filed, may issue subpoenas as 
authorized by statute, either prior to or subsequent to the filing of a 
complaint. Such subpoena may require attendance and testimony of 
witnesses and production of things including, but not limited to, 
papers, books, documents, records, correspondence, or tangible things in 
their possession and under their control and access to such things for 
the purposes of examination and copying. A subpoena may be served by 
overnight courier service or overnight mail, certified mail, or by any 
person who is not less than 18 years of age. A witness, other than a 
witness subpoenaed on behalf of the Federal Government, may not be 
required to attend a deposition or hearing unless the mileage and 
witness fee applicable to witnesses in courts of the United States for 
each date of attendance is paid in advance of the date of the 
proceeding. Mileage and witness fees need not be paid to a witness at 
the time of service of the subpoena if the witness is subpoenaed by the 
Federal Government.
    (b) The subpoena shall identify the person or things subpoenaed, the 
person to whom it is returnable and the place, date, and time at which 
it is returnable; or the subpoena shall identify the nature of the 
evidence to be examined and copied, and the date and time when access is 
requested. Where a non-party is subpoenaed, the requestor of the 
subpoena must give notice to all parties, or if no complaint has been 
filed, then notice shall be given to individuals or entities who have 
been charged with an unfair immigration-related employment practice 
under section 274B of the INA, the individual initiating the alleged 
unfair immigration-related employment practice, and the Office of 
Special Counsel. For purposes of this subsection, the receipt of the 
subpoena or a copy of the subpoena shall serve as the notice.
    (c) Any person served with a subpoena issued by an Administrative 
Law Judge who intends not to comply with it shall, within ten (10) days 
after the date of service of the subpoena upon such person or within 
such other time the Administrative Law Judge deems appropriate, petition 
the Administrative Law Judge to revoke or modify the subpoena. A copy of 
the petition shall be served on all parties. If a complaint has not been 
filed in the matter, a copy of the petition shall be served on the 
individual or entity that requested the subpoena. The petition shall 
separately identify each portion of the subpoena with which the 
petitioner does not intend to comply and shall state, with respect to 
each such portion, the grounds upon which the petitioner relies. A copy 
of the subpoena shall be attached to the petition. Within eight (8) days 
after receipt of the petition, the individual or entity that applied for 
the subpoena may respond to such petition, and the Administrative Law 
Judge shall then make a final determination upon the petition. The 
Administrative Law Judge shall cause a copy of the final determination 
of the petition to be served upon all parties, or, if a complaint has 
not been filed, upon the individuals or entities requesting and 
responding to the subpoena.
    (d) A party shall have standing to challenge a subpoena issued to a 
non-party if the party can claim a personal right or privilege in the 
discovery sought.
    (e) Failure to comply. Upon the failure of any person to comply with 
an order to testify or a subpoena issued

[[Page 230]]

under this section, the Administrative Law Judge may, where authorized 
by law, apply through appropriate counsel to the appropriate district 
court of the United States for an order requiring compliance with the 
order or subpoena.

[Order No. 1534-91, 56 FR 50055, Oct. 3, 1991, as amended by Order No. 
1635-92, 57 FR 57672, Dec. 7, 1992]