Subpoena Issuance by ALJs

by Gene Doyle, LMSW

In a January 30, 1992 letter to People Organized for Our Rights, Inc. (P.O.O.R.), Acting Deputy Counsel Russell J. Hanks clarified Office of Administrative Hearings (OAH) policies "concerning the issuance of subpoenas at fair hearings."

Mr. Hanks explained (at p. 1) that

     "As you are aware, Department regulations at 18 NYCRR 358-5.6(b)(8) authorize the hearing officer, in his or her discretion, to issue subpoenas and/or require the attendance of witnesses and the production of documents at hearings when this is necessary to develop a complete evidentiary record. Since it is the hearing officer's responsibility to ensure that the hearing record is complete, he or she is the only person at the hearing authorized to determine whether the issuance of a subpoena is necessary.

     "If the hearing officer determines that the issuance of a subpoena is necessary and appropriate, he or she will sign a form subpoena which the Department has available for this purpose. It is the appellant's responsibility, however, for the service of this subpoena. If fees are incurred for service, such fees should be requested from the local agency pursuant to 18 NYCRR 358-4.3(d), which provides that the social services agency must provide for any necessary costs and expenditures related to the fair hearing. If the agency denies the request, this determination can be included as an issue for the fair hearing or can be the subject of another fair hearing, as appropriate.

     "With respect to the enforcement of a subpoena issued by a hearing officer, this Department does not currently possess sufficient resources or staffing for this purpose. Therefore, in accordance with Section 2308(b) of the Civil Practice Law and Rules, it must be the responsibility of the appellant, as the person on whose behalf the subpoena was issued, to obtain judicial enforcement."

A December 15, 1992 memorandum was issued to Administrative Law Judges (ALJs) by Mr. Hanks as part of the Stipulation and Order of Settlement and Discontinuance in Chatfield v Bane, 91-CV-6310T (W.D.N.Y. August 5, 1992). This memorandum provided ALJs with instructions for meeting their responsibilities under 45 CFR § 205.10(a)(13)(vi), 7 CFR § 273.15(p)(5), and 42 CFR § 431.242(a), which "provide that the appellant, or the appellant's representative, shall have adequate opportunity to

"'...question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses.'"

Mr. Hanks explained that

     "If a pro se appellant or an appellant represented by someone other than an attorney or law firm expresses an interest in questioning the declarant, the ALJ should determine the relevance of the statement offered into evidence in relation to the issues under review. If not relevant, no action to secure the declarant's presence is necessary. If the statement is relevant, and not otherwise admissible, the ALJ must seek the presence of the declarant, either through agency cooperation or subpoena, or exclude the statement.

     "If appellant's counsel is interested in an opportunity to confront and cross-examine the declarant, counsel should be reminded of her/his power to subpoena the witness. An adjournment should be offered in order to afford counsel that opportunity."

In a September 17, 2007 memorandum to ALJs, Associate Counsel Henry Pedicone provided an overview of the Office of Administrative Hearings (OAH) policies concerning the issuance of subpoenas to compel the appearance of witnesses or the production of documents at fair hearings.

With respect to the issuance of an administrative subpoena by a party's attorney, Mr. Pedicone explained (at p. 1), that

"18 NYCRR §358-5.9(e) provides that

"'(i)n addition to subpoenas issued at the discretion of the fair hearing officer as allowed by section 358-5.6(b)(8), attorneys for parties in fair hearings shall have the same authority to issue subpoenas as is possessed by attorneys under section 2302 of the Civil Practice Law and Rules.'

    "Accordingly, a party’s attorney has the authority to issue an administrative subpoena pursuant to CPLR section 2302 prior to the scheduled hearing date. In practice, the ALJ will turn to a party's counsel to issue any subpoena which that party deems necessary, or, where the appearance is by a paralegal, the ALJ should refer the paralegal to the supervising law office. We have advised legal representatives that we are unaware of any specific form that is available, so it likely will be necessary for them to adapt the language of a judicial subpoena to comport with the provisions of CPLR section 2302.

     "A local district has argued that it is necessary for a party to obtain a subpoena duces tecum from the supreme court to compel the production of documents by the agency, citing Irwin v. Board of Regents (27 NY2d 292). A complete reading of that case, however, does not support the agency's position. Aside from the fact that CPLR 2307 (the basis of Irwin) refers to a judicial subpoena and not an administrative subpoena, the Irwin case indicates that CPLR 2307 has no applicability when there is a specific statutory grant of subpoena power to an administrative agency (page 3 of the decision). Social Service Law 34(5)(b) is our specific statutory grant of subpoena power, which the Commissioner has delegated to ALJ's as well to attorneys for parties to the administrative hearing, under CPLR 2302(a)."

To obtain these reported decisions, see "Legal Research."

With respect to the enforcement of an administrative subpoena by a party's attorney, Mr. Pedicone instructed (at p. 1) that

     "Should there be any issue of enforcement of the subpoena, CPLR 2308(b) provides that the issuer of the subpoena or the party on whose behalf  the subpoena was issued may move in supreme court to compel compliance. If an attorney represents that an agency or other person has refused to comply with a subpoena, he or she should be advised to apply to the supreme court for relief, unless the target of the subpoena is the social services agency."

With respect to ALJs' issuance of subpoenas and with regard to the production of documents or appearance of witnesses under a social services district's control, Mr. Pedicone stated (at pp. 1-2) that

   "Where the documents or witnesses sought are under the control of the social services agency, the provisions of 18 NYCRR §§358-3.7 and 358-4.2 require the agency to comply with requests for documents. §358-5.6 empowers the ALJ to compel the production of witnesses or documents, without requiring a subpoena[.] Should the agency fail to comply with such requests or directives, the ALJ may fashion a remedy in accordance with §358-3.7(b)(4).

    "Pursuant to 18 NYCRR 358-5.6(b)(8), the ALJ is empowered to issue or sign a subpoena, when, at his/her discretion, it is necessary to develop a complete evidentiary record. The ALJ may also require the attendance of other agency witnesses at the hearing where it is determined by the hearing officer to be necessary to complete the record. A request for such a subpoena or directive from the ALJ would be made at the hearing, at which time the ALJ would assess whether it was necessary, and whether the matter should be recessed or adjourned to allow for the production of the witness or documents."

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