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Issuing a State Court Subpoena to Federal Officials: Beware the Touhy Doctrine.

Issuing a State Court Subpoena to Federal Officials: Beware the Touhy Doctrine.

Can you subpoena an IRS or another Federal official in a state court action? There are substantial barriers to subpoenaing a federal official in California superior court without first obtaining consent from the agency under the U.S. Supreme Court case of United States ex rel Touhy v. Ragen, 340 U.S. 462 (1951).

In Touhy, the United States Supreme Court held that a U.S. D.O.J. employee could not be held in contempt where his refusal to testify in response to the subpoena was at the direction of the Attorney General. This makes it crucial for an attorney to follow the so-called “Touhy procedures” when issuing a subpoena in order to get the consent, to the extent appropriate, from the Internal Revenue Service for the testimony of the IRS employee. For the IRS, these procedures can be found in 28 C.F.R. § 301.9000-1 et seq., which are issued pursuant to 5 U.S.C. § 30. These Department of Treasury regulations prohibit IRS employees and employees of the Department of the Treasury from testifying without authorization from agency counsel. See 26 C.F.R. 301.9000-3 and 31 C.F.R. 1.11. In order for the IRS Office of Chief Counsel to authorize such testimony, the requesting party must provide a statement including the intended use of the testimony, a general summary of the desired testimony, and a showing that no document could be provided and used in lieu of testimony.

In Swett v. Schenk, 792 F.3d 1447 (9th Cir. 1986), the Ninth Circuit followed Touhy to affirm the dismissal of a contempt action, removed to U.S. District Court from state court, against a federal official who refused compliance with a state court order to testify. In In re Elko County Grand Jury v. Siminoe, Case No. 96-16394 (9th Cir. March 19, 1997), the Ninth Circuit, after finding no waiver of sovereign immunity found that the state court lacked jurisdiction over a federal official and could not properly issue a bench warrant for his refusal to testify.

In Civiletti v. Municipal Court, 116 Cal. App. 3d 105, 109 (1981), a California appeals court followed Touhy, stating, “an attempt to compel compliance with either subpoena by the Attorney General founders like the Titanic on the hard rock of sovereign immunity.” In People v. Parham, 60 Cal. 2d 378, 381 (1963), the California Supreme Court found that a trial court was correct to refuse to issue an order holding an F.B.I. agent in contempt because the agent was compelled by a federal executive order not to comply. Thus, the Touhy doctrine is recognized and followed by California state courts.

Posted on 05/31/2019 by Daniel W. Layton.