12 U.S.C. § 5562 — Investigations and administrative discovery
submitted 16 years ago by Pub. L. 111-203 to r/title-12-BANKS-AND-BANKING · 2,837 words · no verdicts yet
This section gives the Bureau investigation tools, including subpoenas and civil investigative demands, and sets rules for service, sworn responses, testimony, confidentiality, court enforcement, challenges, custody, and appeals.
(a) Joint investigations. (1) The Bureau* or, when appropriate, a Bureau investigator may conduct joint investigations and request information as this title authorizes. (2) This includes fair-lending matters and, when appropriate, joint investigations with and information requests to the Housing and Urban Development Secretary, the United States Attorney General, or both. (b) Subpoenas. (1) The Bureau or investigator may subpoena witnesses to attend and testify and require relevant papers, books, documents, or other material for hearings under this title. (2) If a person* refuses or deliberately fails to obey a served subpoena, the district court where the person is found, resides, or does business may, on Bureau application and notice, order the person to appear and testify or produce documents or material. (3) The court may punish failure to obey its order as contempt. (c) Demands. (1) Before proceedings under Federal consumer financial law*, if the Bureau has reason to believe a person may have possession, custody, or control of relevant documents or tangible things, or may have relevant information, it may issue and serve a written civil investigative demand requiring (A) document production for inspection and copying or reproduction in the requested form or medium, (B) submission of tangible things, (C) written reports or answers, (D) oral testimony about documents, things, or information, or (E) any combination. (2) Each demand must state* the conduct allegedly violating law and the applicable legal provision. (3) A document demand must clearly identify each class, give reasonable assembly time through its return date or dates, and name the custodian. (4) A things demand must clearly identify each class, give reasonable submission time, and name the custodian. (5) A report or question demand must clearly state the reports or questions, set submission date or dates, and name the custodian. (6) An oral-testimony demand must set date, time, and place to begin and name the Bureau investigator and transcript custodian. (7) A demand or enforcement petition may be served by an investigator anywhere within a United States court’s territory. For a person outside all such territories, it may be served as the Federal Rules of Civil Procedure prescribe for a foreign nation. If United States courts may assert jurisdiction consistently with due process, the District Court for the District of Columbia has the same compliance jurisdiction it would have if the person were physically within that court’s territory. (8) Service on a person or legal entity may be made by delivering an executed copy to the person or a partner, executive officer, managing or general agent, or authorized process agent; delivering it to the principal office or place of business; or registered or certified mailing with return receipt requested to that office or place. (9) A verified return by the server stating how service was made proves service. For registered or certified mail, it must include the postal delivery receipt. (10) Document production must include a sworn certificate in the demand’s form, signed by the natural person addressed or, for another person, someone knowing the production facts, stating that all demanded documents in the addressed person’s possession, custody, or control were produced and made available to the custodian. (11) Tangible-things submission requires a similar sworn certificate stating that all demanded things in that person’s possession, custody, or control were submitted. (12) Each report requirement or question must be answered separately and fully in writing under oath. If objected to, the reasons replace the answer. A sworn certificate in the demand’s form, signed by the natural person addressed or the responsible answerer for another person, must state that all demanded information in the addressed person’s possession, custody, control, or knowledge was submitted. (13)(A)(i) Oral examination must occur before an officer authorized to administer oaths or affirmations by United States law or the law of the place. The officer must swear or affirm the witness and personally, or through an individual acting under the direction of and in the presence of the officer, record the testimony. (ii) It must be recorded stenographically and transcribed. (iii) After full transcription, the officer or investigator before whom it was taken must promptly send a copy to the custodian. (B) The investigator must exclude everyone except the witness, the witness’s attorney, the administering officer, an investigator or representative of a joint-investigation agency, and the stenographer. (C) Testimony must be taken in the United States judicial district where the person resides, is found, or does business, or another place agreed by the investigator and person. (D)(i) A compelled person may have an attorney accompany, represent, and advise them. (ii) The attorney may confidentially advise about any question, at the person’s request or the attorney’s initiative. (iii) The person or attorney may object on the record to all or part of a question and briefly state why. Objections may claim a constitutional or other legal right or privilege, including self-incrimination. Otherwise the person must answer and neither person nor attorney may interrupt. (iv) If the person refuses, (I) the Bureau may petition a district court for an order compelling an answer, and (II) a self-incrimination refusal may be compelled under section 6004 of title 18. (E) After transcription, the investigator must give the witness, who may have an attorney, reasonable time to inspect it. It must be read to or by the witness unless waived. Requested changes must be entered and identified with reasons. The witness must sign unless the witness waives in writing, is ill, cannot be found, or refuses. If not signed within 30 days after the first reasonable inspection opportunity, the investigator signs and records the waiver, illness, absence, or refusal and any stated reasons. (F) The investigator must certify that the witness was sworn and the transcript is true, then promptly deliver or registered/certified-mail it to the custodian. (G) On payment of reasonable transcript charges, the investigator gives a copy only to the witness, but for good cause the Bureau may limit the witness to inspecting the official transcript. (H) A witness is entitled to the same fees and mileage paid to United States district-court witnesses. (d)(1) Documents and things received through a demand are subject to confidentiality requirements and procedures in Bureau rules. (2) No Bureau confidentiality rule may be intended to prevent disclosure to either House or an appropriate congressional committee, though the Bureau may allow prior notice to a party that owns or supplied material designated confidential. (e)(1) If a person fails to comply with a properly served demand, or refuses to surrender material that cannot be satisfactorily copied or reproduced, the Bureau through designated officers or attorneys may file and serve a petition for enforcement in the district where the person resides, is found, or does business. (2) Court process for an application under this subsection may be served in any judicial district. (f)(1) Within 20 days after service of a demand upon a person under subsection (b), or before its return date if sooner, unless a Bureau investigator named in the demand sets a longer period in writing after service, the person may petition the Bureau to modify or set aside the demand. (2) Properly ordered compliance time stops while the petition is pending, except the person must comply with portions of the demand that the person does not seek to modify or set aside. (3) The petition must state each ground and may rely on noncompliance with this section or a constitutional or other legal right or privilege. (g) At any time while a custodian has custody or control of documentary material, tangible things, reports, answers to questions, or transcripts of oral testimony that a person gave in compliance with a civil investigative demand, that person may file a petition in the United States district court for the judicial district where the custodian’s office is located, and serve the custodian, asking for an order requiring the custodian to perform a duty imposed by this section or a Bureau rule. (h)(1) A United States district court receiving a petition has jurisdiction to decide it and issue orders needed to carry out this section. (2) A final order is appealable under section 1291 of title 28.
The Bureau* or, where appropriate, a Bureau investigator, may engage in joint investigations and requests for information, as authorized under this title.1
The authority under paragraph (1) includes matters relating to fair lending, and where appropriate, joint investigations with, and requests for information from, the Secretary of Housing and Urban Development, the Attorney General of the United States, or both.
The Bureau or a Bureau investigator may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, documents, or other material in connection with hearings under this title.1
In the case of contumacy or refusal to obey a subpoena issued pursuant to this paragraph and served upon any person*, the district court of the United States for any district in which such person is found, resides, or transacts business, upon application by the Bureau or a Bureau investigator and after notice to such person, may issue an order requiring such person to appear and give testimony or to appear and produce documents or other material.
Any failure to obey an order of the court under this subsection may be punished by the court as a contempt thereof.
Whenever the Bureau has reason to believe that any person may be in possession, custody, or control of any documentary material or tangible things, or may have any information, relevant to a violation, the Bureau may, before the institution of any proceedings under the Federal consumer financial law*, issue in writing, and cause to be served upon such person, a civil investigative demand requiring such person to—
produce such documentary material for inspection and copying or reproduction in the form or medium requested by the Bureau;
submit such tangible things;
file written reports or answers to questions;
give oral testimony concerning documentary material, tangible things, or other information; or
furnish any combination of such material, answers, or testimony.
Each civil investigative demand shall state* the nature of the conduct constituting the alleged violation which is under investigation and the provision of law applicable to such violation.
Each civil investigative demand for the production of documentary material shall—
describe each class of documentary material to be produced under the demand with such definiteness and certainty as to permit such material to be fairly identified;
prescribe a return date or dates which will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspection and copying or reproduction; and
identify the custodian to whom such material shall be made available.
Each civil investigative demand for the submission of tangible things shall—
describe each class of tangible things to be submitted under the demand with such definiteness and certainty as to permit such things to be fairly identified;
prescribe a return date or dates which will provide a reasonable period of time within which the things so demanded may be assembled and submitted; and
identify the custodian to whom such things shall be submitted.
Each civil investigative demand for written reports or answers to questions shall—
propound with definiteness and certainty the reports to be produced or the questions to be answered;
prescribe a date or dates at which time written reports or answers to questions shall be submitted; and
identify the custodian to whom such reports or answers shall be submitted.
Each civil investigative demand for the giving of oral testimony shall—
prescribe a date, time, and place at which oral testimony shall be commenced; and
identify a Bureau investigator who shall conduct the investigation and the custodian to whom the transcript of such investigation shall be submitted.
Any civil investigative demand issued, and any enforcement petition filed, under this section may be served—
by any Bureau investigator at any place within the territorial jurisdiction of any court of the United States; and
upon any person who is not found within the territorial jurisdiction of any court of the United States—
in such manner as the Federal Rules of Civil Procedure prescribe for service in a foreign nation; and
to the extent that the courts of the United States have authority to assert jurisdiction over such person, consistent with due process, the United States District Court for the District of Columbia shall have the same jurisdiction to take any action respecting compliance with this section by such person that such district court would have if such person were personally within the jurisdiction of such district court.
Service of any civil investigative demand or any enforcement petition filed under this section may be made upon a person, including any legal entity, by—
delivering a duly executed copy of such demand or petition to the individual or to any partner, executive officer, managing agent, or general agent of such person, or to any agent of such person authorized by appointment or by law to receive service of process on behalf of such person;
delivering a duly executed copy of such demand or petition to the principal office or place of business of the person to be served; or
depositing a duly executed copy in the United States mails, by registered or certified mail, return receipt requested, duly addressed to such person at the principal office or place of business of such person.
A verified return by the individual serving any civil investigative demand or any enforcement petition filed under this section setting forth the manner of such service shall be proof of such service.
In the case of service by registered or certified mail, such return shall be accompanied by the return post office receipt of delivery of such demand or enforcement petition.
The production of documentary material in response to a civil investigative demand shall be made under a sworn certificate, in such form as the demand designates, by the person, if a natural person, to whom the demand is directed or, if not a natural person, by any person having knowledge of the facts and circumstances relating to such production, to the effect that all of the documentary material required by the demand and in the possession, custody, or control of the person to whom the demand is directed has been produced and made available to the custodian.
The submission of tangible things in response to a civil investigative demand shall be made under a sworn certificate, in such form as the demand designates, by the person to whom the demand is directed or, if not a natural person, by any person having knowledge of the facts and circumstances relating to such production, to the effect that all of the tangible things required by the demand and in the possession, custody, or control of the person to whom the demand is directed have been submitted to the custodian.
Each reporting requirement or question in a civil investigative demand shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for the objection shall be stated in lieu of an answer, and it shall be submitted under a sworn certificate, in such form as the demand designates, by the person, if a natural person, to whom the demand is directed or, if not a natural person, by any person responsible for answering each reporting requirement or question, to the effect that all information required by the demand and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted.
The examination of any person pursuant to a demand for oral testimony served under this subsection shall be taken before an officer authorized to administer oaths and affirmations by the laws of the United States or of the place at which the examination is held. The officer before whom oral testimony is to be taken shall put the witness on oath or affirmation and shall personally, or by any individual acting under the direction of and in the presence of the officer, record the testimony of the witness.
The testimony shall be taken stenographically and transcribed.
After the testimony is fully transcribed, the officer investigator before whom the testimony is taken shall promptly transmit a copy of the transcript of the testimony to the custodian.
Any Bureau investigator before whom oral testimony is to be taken shall exclude from the place where the testimony is to be taken all other persons, except the person giving the testimony, the attorney for that person, the officer before whom the testimony is to be taken, an investigator or representative of an agency with which the Bureau is engaged in a joint investigation, and any stenographer taking such testimony.
The oral testimony of any person taken pursuant to a civil investigative demand shall be taken in the judicial district of the United States in which such person resides, is found, or transacts business, or in such other place as may be agreed upon by the Bureau investigator before whom the oral testimony of such person is to be taken and such person.
Any person compelled to appear under a civil investigative demand for oral testimony pursuant to this section may be accompanied, represented, and advised by an attorney.
The attorney may advise a person described in clause (i), in confidence, either upon the request of such person or upon the initiative of the attorney, with respect to any question asked of such person.
A person described in clause (i), or the attorney for that person, may object on the record to any question, in whole or in part, and such person shall briefly state for the record the reason for the objection. An objection may properly be made, received, and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on grounds of any constitutional or other legal right or privilege, including the privilege against self-incrimination, but such person shall not otherwise object to or refuse to answer any question, and such person or attorney shall not otherwise interrupt the oral examination.
If a person described in clause (i) refuses to answer any question—
the Bureau may petition the district court of the United States pursuant to this section for an order compelling such person to answer such question; and
if the refusal is on grounds of the privilege against self-incrimination, the testimony of such person may be compelled in accordance with the provisions of section 6004 of title 18.
For purposes of this subsection—
after the testimony of any witness is fully transcribed, the Bureau investigator shall afford the witness (who may be accompanied by an attorney) a reasonable opportunity to examine the transcript;
the transcript shall be read to or by the witness, unless such examination and reading are waived by the witness;
any changes in form or substance which the witness desires to make shall be entered and identified upon the transcript by the Bureau investigator, with a statement of the reasons given by the witness for making such changes;
the transcript shall be signed by the witness, unless the witness in writing waives the signing, is ill, cannot be found, or refuses to sign; and
if the transcript is not signed by the witness during the 30-day period following the date on which the witness is first afforded a reasonable opportunity to examine the transcript, the Bureau investigator shall sign the transcript and state on the record the fact of the waiver, illness, absence of the witness, or the refusal to sign, together with any reasons given for the failure to sign.
The Bureau investigator shall certify on the transcript that the witness was duly sworn by him or her and that the transcript is a true record of the testimony given by the witness, and the Bureau investigator shall promptly deliver the transcript or send it by registered or certified mail to the custodian.
The Bureau investigator shall furnish a copy of the transcript (upon payment of reasonable charges for the transcript) to the witness only, except that the Bureau may for good cause limit such witness to inspection of the official transcript of his testimony.
Any witness appearing for the taking of oral testimony pursuant to a civil investigative demand shall be entitled to the same fees and mileage which are paid to witnesses in the district courts of the United States.
Documentary materials and tangible things received as a result of a civil investigative demand shall be subject to requirements and procedures regarding confidentiality, in accordance with rules established by the Bureau.
No rule established by the Bureau regarding the confidentiality of materials submitted to, or otherwise obtained by, the Bureau shall be intended to prevent disclosure to either House of Congress or to an appropriate committee of the Congress, except that the Bureau is permitted to adopt rules allowing prior notice to any party that owns or otherwise provided the material to the Bureau and had designated such material as confidential.
Whenever any person fails to comply with any civil investigative demand duly served upon him under this section, or whenever satisfactory copying or reproduction of material requested pursuant to the demand cannot be accomplished and such person refuses to surrender such material, the Bureau, through such officers or attorneys as it may designate, may file, in the district court of the United States for any judicial district in which such person resides, is found, or transacts business, and serve upon such person, a petition for an order of such court for the enforcement of this section.
All process of any court to which application may be made as provided in this subsection may be served in any judicial district.
Not later than 20 days after the service of any civil investigative demand upon any person under subsection (b), or at any time before the return date specified in the demand, whichever period is shorter, or within such period exceeding 20 days after service or in excess of such return date as may be prescribed in writing, subsequent to service, by any Bureau investigator named in the demand, such person may file with the Bureau a petition for an order by the Bureau modifying or setting aside the demand.
The time permitted for compliance with the demand in whole or in part, as determined proper and ordered by the Bureau, shall not run during the pendency of a petition under paragraph (1) at the Bureau, except that such person shall comply with any portions of the demand not sought to be modified or set aside.
A petition under paragraph (1) shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the demand to comply with the provisions of this section, or upon any constitutional or other legal right or privilege of such person.
At any time during which any custodian is in custody or control of any documentary material, tangible things, reports, answers to questions, or transcripts of oral testimony given by any person in compliance with any civil investigative demand, such person may file, in the district court of the United States for the judicial district within which the office of such custodian is situated, and serve upon such custodian, a petition for an order of such court requiring the performance by such custodian of any duty imposed upon him by this section or rule promulgated by the Bureau.
Whenever any petition is filed in any district court of the United States under this section, such court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry out the provisions of this section.
Any final order entered as described in paragraph (1) shall be subject to appeal pursuant to section 1291 of title 28.
Source credit: (Pub. L. 111–203, title X, § 1052, July 21, 2010, 124 Stat. 2019.)
- 2010Enacted · Pub. L. 111-203 · 124 Stat. 2019
A history note hasn’t been published yet. The record shows enactment by Pub. L. 111-203 on 2010-07-21.
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