The CFTC declined to authorize compliance with a subpoena for documents issued by an OCC administrative law judge ("ALJ") after a finding that the subpoena was invalid and otherwise objectionable. The subpoena, which requested documents related to a 2014 CFTC consent order, was issued by the ALJ at the request of an individual contesting charges brought against him by the OCC alleging that his actions resulted in financial loss to a banking institution where he was employed.
The CFTC concluded that the OCC subpoena was invalid because the ALJ did not have the authority to issue a subpoena to the CFTC, and the OCC did not have the power to issue compulsory process against the CFTC. Specifically, the CFTC found that 12 U.S.C. Section 1818(n) ("Subpoena power") does not authorize the OCC to issue subpoenas to other federal agencies and that OCC Rule 19.26 ("Document subpoenas to nonparties") was not intended to authorize the OCC to delegate the subpoena power of a federal agency to an ALJ. The CFTC also determined that the subpoena was invalid because Congress did not waive sovereign immunity for the subpoenas issued by ALJs in OCC administrative proceedings to non-party federal agencies, as the CFTC is in this instance.
The CFTC also determined that in addition to being invalid, the subpoena was objectionable because (1) the category of documents it sought is excessively broad, (2) the subpoena sought internal privileged CFTC information, and (3) the subpoena sought information that could have been obtained from third parties with less burden.
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