FIRREA, 12 U.S.C. § 1833a, permits DOJ to issue administrative subpoenas to investigate potential violations. The DOJ may subpoena documents and other materials, and may take sworn testimony from relevant witnesses. DOJ utilizes FIRREA subpoenas more proactively than CIDs under the False Claims Act (FCA), which are often issued after receipt of a qui tam complaint. As a result, receiving a FIRREA subpoena does not necessarily (although it can) mean that a whistleblower (known as a declarant) has brought information to the government.
Even in situations where a declarant does exist, unlike under the FCA, the declarant has not filed a complaint in federal district court. Rather, the declarant must simply provide DOJ with all relevant facts he or she possesses, along with names of material witnesses and the nature and location of documentary evidence. A declarant’s rights and obligations are governed by a separate statute, the Financial Institutions Anti-Fraud Enforcement Act of 1990, 12 U.S.C. §§ 4201-4206.
Because declarants have not filed qui tam complaints in federal district court, a judge has not been assigned to monitor DOJ’s investigation and ensure that it proceeds in a timely fashion. As a result, the length of a FIRREA investigation, and accompanying obligations for the production of documents and testimony, can vary widely.