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Enforceability of Subpoenas

Generally, courts will not interfere with the decision of an agency to issue subpoenas in conducting an investigation.  It is constitutional for an agency to impose procedural sanctions if empowered to do so by statute.  Under the Federal Administrative Procedure Act, a court is required to sustain a subpoena to the extent that it is found to be in accordance with the law[i].

A court has a duty to enforce an administrative subpoena if[ii]:

  • The evidence is competent and relevant;
  • The demand for information is definite;
  • The purpose of the investigation is authorized by statute;
  • Proper administrative steps are followed in issuing the subpoena.

Mainly there are two constitutional grounds for challenging the enforceability of an administrative subpoena:

1.  Fourth amendment prohibits unreasonable search and seizures. The restriction imposed by this amendment on unreasonable searches and seizures are not limited to criminal investigations but also applicable to administrative subpoenas.  However, a legislative scheme that authorizes administrative searches of commercial property without warrant will not violate the fourth amendment[iii].

2.  The Fifth Amendment privilege against self incrimination can also be raised to challenge an administrative subpoena.  In Couch v. United States, 409 U.S. 322, 93 S. Ct. 611 (1973), it was held that the privilege can only be asserted by an individual, not by a corporation or a union.

Similarly, a court can refuse to enforce a subpoena because of fraud committed by the government.  Likewise, if the government issues a subpoena to harass or to coerce a party concerning a collateral matter, then the court will not enforce the subpoena[iv].

[i] 5 USCS § 555

[ii] United States v. Powell, 379 U.S. 48 (U.S. 1964)

[iii] Donovan v. Dewey, 452 U.S. 594 (U.S. 1981)

[iv] Resolution Trust Corp. v. Frates, 61 F.3d 962 (D.C. Cir. 1995)

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