§ 1201.85 Enforcing subpoenas.

(a) If a person who has been served with a Board subpoena fails or refuses to comply with its terms, the party seeking compliance may file a written motion for enforcement with the judge. That party must present the document certifying that the subpoena was served and, except where the witness was required to appear before the judge, must submit an affidavit or sworn statement under 28 U.S.C. 1746 (see appendix IV) describing the failure or refusal to obey the subpoena. A written motion must be served upon the person who is alleged to be in noncompliance. (b) The person who is alleged to be in noncompliance may file a response within 10 days. A party must file the response with the judge and serve it on the other parties. Non-parties must file their response with the judge, who will enter the response into the record. The judge may waive § 1201.14(d) to accept a nonparty's response by email. Any party may file a reply to the response within 10 days after the response has been entered into the record. (c) In ruling on a motion to quash, judges may rely on Fed.R.Civ.P. 45 and applicable case law. Upon a finding by the judge of failure to obey a subpoena, the Board, in accordance with 5 U.S.C. 1204(c), may then ask an appropriate U.S. district court to enforce the subpoena. If the person who has failed or refused to comply with a Board subpoena is located in a foreign country, the U.S. District Court for the District of Columbia will have jurisdiction to enforce compliance, to the extent that a U.S. court can assert jurisdiction over an individual in the foreign country. (d) Upon application by the Special Counsel, the Board may seek court enforcement of a subpoena issued by the Special Counsel in the same manner in which it seeks enforcement of Board subpoenas, in accordance with 5 U.S.C. 1212(b)(3).