Subpoena Ad Testificandum - Subpoena Power Defined in The Federal Administrative Procedure Act

Subpoena Power Defined in The Federal Administrative Procedure Act

Following the United States Supreme Court ruling in Morgan v. United States, federal administrative law was ripe for significant reform. Administrative law had grown significantly during the Franklin Delano Roosevelt administration and the implementation of the numerous agencies promulgated under the New Deal. The decision in Morgan precipitated change in the federal system which had been deemed inadequate for the previous thirty five years. In 1941 the United States Attorney General's Committee presented its final report on federal administrative procedure. The report resulted in the Federal Administrative Procedure Act of 1946 (APA). A parallel report entitled the Benjamin Report was issued concerning administrative adjudication in the state of New York in 1942. The Federal Administrative Procedure Act of 1946 required hearings to have the qualities defined in §§ 553 and 554: For hearings involved in the taking of evidence, there shall preside:

1. The agency
2. One or more members of the body which comprises the agency; and
3. One or more hearing examiners appointed under section 3105.

Subject to published rules of the agency and within its power, employees presiding at hearings may -

1. Administer oaths and affirmations;
2. Issue subpoenas authorized by law;
3. Rule on offers of proof and receive relevant evidence;
4. Take depositions or have depositions taken when the ends of justice would be served;
5. Regulate the course of the hearing;
6. Hold conferences for the settlement or simplification of the issues by consent of the parties;
7. Dispose of procedural requests or similar matters;
8. Make or recommend decisions in accordance with section 557 of the title;
9. Create a transcript of the testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for the decision in accordance with § 557 of the title. Upon payment of lawfully prescribed costs, the transcript shall be made available to the parties involved. When the agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled on timely request to an opportunity to show contrary. In the years following the enactment of the Administrative Act, hearing officers have had their titles and positions changed to Administrative Law Judge. This was done by Civil Service Commission and not by an act of Congress. This change is arguably important to lend credence to the authority to issue subpoenas for administrative procedures.

From the Federal Administrative Procedure Act, 5 U.S.C. § 555 (b): "A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by, or with counsel in an agency hearing."

In Madera v. Board of Education, 1967, the United States Supreme Court ruled that administrative hearings which complied with the requirements of due process must allow counsel. In Powell v. Alabama, 1938, the Supreme Court ruled that in criminal proceedings, the accused must be provided counsel at public expense, if the defendant cannot afford one. It is not required that representation in administrative hearings be paid for by public funds. Some hearings require that counsel cannot participate, as in arguing the case, but may only advise the client.

When the APA applies, the agency due process hearing must be presided over by the agency head (or one or more of the commissioners or board members, if it is a multiheaded agency) or an administrative law judge. The APA states that is provision requiring hearings by agency heads of administrative law judges, "does not supersede the conduct of specified classes or proceedings... by or before boards or other employees specially provided for by or designed under statute." The most prominent use of this clause is the Immigration and Naturalization Service.

In general, one called to be a witness by subpoena issued under APA guidelines is entitled to have representation by an attorney. This is not uniform, however. The Supreme Court has held that there is no constitutional right to counsel in noncriminal investigatory proceedings. Even the blanket right to counsel given by APA may not apply to all agencies. The Internal Revenue Service and the Securities and Exchange Commission have sought to restrict the right of person called as witnesses in investigatory proceedings to engage lawyers who appear as counsel for someone else in the hearing. The courts have been ambivalent in their reaction to such attempts to restrict the choice of counsel. One case holds that person required to testify in a tax investigation are not entitled to counsel connected with or retained by the taxpayer whose liability is under investigation.