Touhy Requests in Nevada

Getting Information from Federal Agencies in Nevada: What Are Touhy Requests and When You Need One

If your case involves a federal employee, a federal agency, or records held by the United States, ordinary subpoena practice may not be enough. In many situations, you need what lawyers call a Touhy request.

At Flake & Flake, we help clients and attorneys navigate the intersection of Nevada litigation, federal agencies, and Administrative Procedure Act challenges.

What is a Touhy request?

A Touhy request is a formal request for testimony, documents, or other official information from a federal agency or federal employee for use in a legal proceeding. The term comes from United States ex rel. Touhy v. Ragen, a Supreme Court case recognizing that federal agencies may regulate how their employees respond to demands for official information.

In plain English, a Touhy request is often required when you want information from a federal employee acting in an official capacity, or when you want records or testimony connected to that employee’s federal work.

When do I need a Touhy request?

You may need a Touhy request when you want testimony or records from a federal employee or agency in a lawsuit, administrative proceeding, or other legal matter, and the information was obtained through that person’s federal employment.

The most important threshold distinction is this: Touhy issues usually arise when the United States or the agency is not a party to the underlying proceeding. When the United States is a party in federal litigation, ordinary federal discovery rules generally govern, and Touhy is usually not the main issue.

Common examples include requests involving:

  • FBI agents
  • VA doctors or other VA personnel
  • Bureau of Land Management employees
  • National Park Service employees
  • Federal task-force officers
  • Other federal investigators, regulators, or agency personnel

Each agency has its own regulations. For example, the Department of Justice has Touhy regulations at 28 C.F.R. §§ 16.21–16.29. Other agencies, including the Department of the Interior and the Department of Veterans Affairs, have their own separate rules.

How do I get testimony or records from a federal employee for a Nevada case?

If you want testimony or records from a federal employee for use in a Nevada case, the first question is usually: what court is your underlying case in?

If your case is in Nevada state court

A Nevada state-court subpoena is usually not enough by itself to force a federal employee or agency to testify or produce official information obtained through federal employment. As a practical matter, you generally must follow the agency’s Touhy regulations.

That matters because state courts generally do not have power to enforce a subpoena directly against a federal agency or employee acting within the scope of federal authority. If enforcement is attempted, the dispute is often removed to federal court and a motion to quash follows.

If your case is in federal court

The analysis is different. If the United States is a party to the federal case, ordinary federal discovery rules generally govern, and Touhy usually is not the central issue.

If, however, the federal agency or employee is a nonparty, the analysis becomes more complicated. In the Ninth Circuit, federal courts do not treat the federal housekeeping statute as a stand-alone privilege that automatically blocks discovery. Instead, the court may evaluate the dispute under the Federal Rules of Civil Procedure while still taking the government’s resource and privilege concerns seriously.

That does not mean every federal subpoena will be enforced. It means the path, the standard of review, and the available arguments may be different from what applies in state court.

Can I subpoena an FBI agent, a VA doctor, or another federal employee in Nevada state court?

You can issue the subpoena, but that does not mean the Nevada state court can compel compliance.

If the testimony or records concern information the employee obtained through federal employment, the federal agency’s Touhy regulations usually control the process. A state court ordinarily cannot use its own contempt power to force compliance in the face of valid federal regulations and sovereign immunity.

That is why these cases often turn less on ordinary state subpoena practice and more on federal administrative law, federal removal, and the agency’s written decision.

What should a Touhy request include?

The answer depends on the agency, but a good Touhy request usually does at least four things:

  1. It identifies the employee, records, or information sought.
  2. It explains exactly why the testimony or records matter.
  3. It ties the request to the actual issues in the case.
  4. It shows why the information cannot be obtained as easily from another source.

Some agencies also require supporting pleadings, a summary of the proposed testimony, the relevance of the request, and compliance with agency-specific procedures about timing, service, and costs.

A vague request is much easier to deny than a focused one.

What happens if a federal agency denies my Touhy request?

That depends in large part on the forum.

In state-court matters

If the underlying matter is in state court and the agency denies the request, the usual path is not to ask the state judge to hold the federal employee in contempt. Instead, the dispute often has to be addressed in federal court, typically through an action seeking review of the agency’s decision.

In federal-court matters

If the underlying matter is already in federal court, the dispute may be resolved there through motion practice, including a motion to compel or a motion to quash, depending on the posture of the case and the agency involved.

How does the Administrative Procedure Act fit into a Touhy dispute?

The Administrative Procedure Act (APA) is often central when a federal agency denies a Touhy request and there is no other adequate route to judicial review.

Under the APA, a federal court reviews agency action to determine whether it was arbitrary, capricious, contrary to law, or otherwise legally defective. In many Touhy disputes, the threshold questions include whether the agency has taken final agency action and whether there is another adequate remedy in court.

In practical terms, that means the agency’s denial letter matters. The wording, the stated basis for the denial, the regulations the agency relied on, and whether the agency treated the matter as final can all matter.

What is the administrative record, and why does it matter?

In an APA challenge, the case is usually built around the administrative record. That is the set of materials the agency says it considered when it made the decision you are challenging.

In a Touhy case, that can include the request itself, supporting materials, internal routing and review, correspondence, and the final agency response. The court often reviews that record to decide whether the agency followed the law and its own rules.

Because the administrative record matters so much, it is important to frame the request carefully on the front end.

What relief can a court give if the agency acted unlawfully?

The answer depends on the posture of the case.

In some situations, a federal court may set aside the agency’s unlawful decision and send the matter back for reconsideration under the correct legal standard. In other situations, the court may compel agency action that was unlawfully withheld or unreasonably delayed.

In practice, remand is common. Courts are often more comfortable requiring a lawful reconsideration than stepping directly into the agency’s role on the first pass.

What is the difference between a Touhy request and a FOIA request?

A FOIA request is a request for agency records under the Freedom of Information Act. A Touhy request is a request for testimony, records, or official information for use in a legal proceeding.

The difference matters. FOIA is about public access to agency records. Touhy is about obtaining evidence or information for use in litigation or another proceeding. FOIA does not give you deposition testimony from a federal employee.

Do I have to sue in Washington, D.C.?

Not necessarily.

Venue often exists outside Washington, D.C., depending on the agency, the plaintiff, and where the relevant events occurred. In some cases, the United States District Court for the District of Nevada may be the proper forum. In others, venue may lie elsewhere.

That issue should be analyzed early, because filing in the wrong court can cost time.

Do I need a lawyer with federal-court experience?

Usually, yes.

Touhy disputes can look deceptively simple. They are not. They often involve a mix of federal regulations, sovereign immunity, removal, APA review, administrative records, agency-specific procedures, and forum-specific strategy.

A lawyer who understands both Nevada litigation and federal practice is far more likely to identify the right path early, avoid procedural dead ends, and frame the request in a way that gives it the best chance of success.

A practical bottom line

If the United States is a party to the federal case, Touhy usually is not the issue you need to address first. Ordinary federal discovery practice usually is.

If the United States is not a party, and you are trying to obtain testimony or official information from a federal employee or agency, Touhy and related federal-law issues may control the path from the very beginning.

We handle Touhy and APA issues in Nevada

If your case requires records or testimony from a federal employee or federal agency, the first question is usually not just what do you want. The real question is what is the correct federal procedure for getting it.

That is where early strategy matters.

If you are dealing with a Touhy request, a federal subpoena problem, or an APA challenge tied to a Nevada case, Flake & Flake can help evaluate the issue and chart the right course.

Related Resources

This page is for general informational purposes only and is not legal advice.