[Title 28 CFR 21]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 21 - WITNESS FEES]
[From the U.S. Government Printing Office]


28JUDICIAL ADMINISTRATION12002-07-012002-07-01false21PART 21JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 21--WITNESS FEES--Table of Contents




Sec.
21.1  Definitions.
21.2  Employees of the United States serving as witnesses.
21.3  Aliens.
21.4  Fees and allowances of fact witnesses.
21.5  Use of table of distances.
21.6  Proceedings in forma pauperis.
21.7  Certification of witness attendance.

    Authority: 28 U.S.C. 509, 510, 1821-1825, 5 U.S.C. 301.

    Source: 51 FR 16171, May 1, 1986, unless otherwise noted.



Sec. 21.1  Definitions.

    (a) Agency proceeding. An agency process as defined by 5 U.S.C. 551 
(5), (7) and (9).
    (b) Alien. Any person who is not a citizen or nantional of the 
United States.
    (c) Judicial proceeding. Any action or suit, including any 
condemnation, preliminary, informational or other proceeding of a 
judicial nature. Examples of the latter include, but are not limited to, 
hearings and conferences before a committing court, magistrate, or 
commission, grand jury proceedings, pre-trial conferences, depositions, 
and coroners' inquests. It does not include information or investigative 
proceedings conducted by a prosecuting attorney for the purpose of 
determining whether an information or charge should be made in a 
particular case. The judicial proceeding may be in the District of 
Columbia, a State, or a territory or possession of the United States 
including the Commonwealth of Puerto Rico or the Trust Territory of the 
Pacific Islands.

[[Page 407]]

    (d) Pre-trial conference. A conference between the Government 
Attorney and a witness to discuss the witness' testimony. The conference 
must take place after a trial, hearing or grand jury proceeding has been 
scheduled but prior to the witness' actual appearance at the proceeding.
    (e) Residence. The term residence is not limited to the legal 
residence, but includes any place at which the witness is actually 
residing and at which the subpoena or summons is served. If the 
residence of the witness at the time of appearance is different from the 
place of subpoena or summons, the new place of residence shall be 
considered the witness' residence for computation of the transportation 
allowance; but, if the witness is on a business or vacation trip at the 
time of appearance, the witness shall be paid for travel from the place 
of service if this does not result in the witness being paid for more 
travel than is actually performed.
    (f) Summons. An official request, invitation or call, evidenced by 
an official writing of the court, authority, or party responsible for 
the conduct of the proceeding.



Sec. 21.2  Employees of the United States serving as witnesses.

    (a) Applicability. This section applies to employees of the United 
States as defined by 5 U.S.C. 2105, except those whose pay is disbursed 
by the Secretary of the Senate or the Clerk of the House of 
Representatives.
    (b) Entitlement to travel expenses--(1) Official capacity. An 
employee is entitled to travel expenses (in accordance with 
Sec. 21.2(c)) in connection with any judicial or agency proceeding with 
respect to which the employee is summoned (and is authorized by the 
employee's agency to respond to such summons), or is assigned by his or 
her agency:
    (i) To testify or produce official records on behalf of the United 
States, or
    (ii) To testify in his or her official capacity or produce official 
records on behalf of a party other than the United States.


The witness appropriation of the Department of Justice is not available 
for expenses incurred under these conditions.
    (2) Unofficial capacity, federal involvement. An employee is 
entitled to travel expenses (in accordance with paragraph (c) of this 
section) in connection with any judicial or agency proceeding with 
respect to which the employee is summoned to testify on behalf of the 
United States. If an employee is summoned to testify on behalf of a 
party other than the United States, the employee's travel expenses shall 
be payable by the court, authority, or party which caused the employee 
to be summoned.
    (3) Unofficial capacity, no Federal involvement. An employee who 
appears as a witness in any judicial proceeding in an unofficial 
capacity in which there is no Federal involvement is not authorized 
Government travel expenses and may retain reimbursement for expenses 
which he or she receives from the court, authority or party which caused 
the employee to be summoned.
    (c) Allowable travel expenses. An employee qualifying for payment of 
travel expenses by virtue of being called in an official capacity or on 
behalf of the United States shall be paid at rates and in amounts 
allowable for other purposes under the provisions of 5 U.S.C. 5702-5705 
and applicable regulations prescribed thereunder by the Administrator, 
General Services, and the employing agency. Such payment shall be 
reduced to the extent that the travel expenses are paid to the employee 
for his or her appearance by the court, authority, or party which caused 
the employee to be summoned as a witness in an official capacity on 
behalf of a party other than the United States.
    (d) Payment and reimbursement--(1) Payable by the employing agency. 
If an employee serves as a witness, and the case involves the activity 
in connection with which he or she is employed, the travel expenses are 
payable from the appropriation of the employing agency. The Comptroller 
General has defined the extent to which the case must be related to the 
agency's activity as a condition to the agency's responsibility for 
payment in 23 Comp. Gen. 47, 49 (1943), which states ``the employing 
agency is required to pay . . . the traveling expenses incurred by the

[[Page 408]]

witness only where the information or facts ascertained by the employee 
as part of his official duties forms the basis of the case, or where the 
proceeding is predicated upon a law that that agency is required to 
administer.'' In 39 Comp. Gen. 1, 2 (1959), the Comptroller General 
determined that if an employee testifies regarding facts and information 
he or she acquires in the course of his or her assigned duties, the 
employing agency is responsible for the payment of the employee's travel 
expenses. In these instances, the witness appropriation of the 
Department of Justice is not available for payment of expenses.
    (2) Payable by the Department of Justice. If an employee appears on 
behalf of the United States in an unofficial capacity in a judicial 
proceeding involving the Department of Justice, the employee's travel 
expenses are payable by the Department of Justice. The employing agency 
may advance or pay the travel expenses of the employee and later obtain 
reimbursement from the Department of Justice by submitting an 
appropriate bill together with a copy of the approved advance or travel 
voucher.
    (e) Leave and attendance fee--(1) Leave. An employee is considered 
to be in official duty status when appearing as a witness in his or her 
official capacity or on behalf of the United States in an unofficial 
capacity. An employee is entitled to court leave when he or she appears 
as a witness in an unofficial capacity not on behalf of the United 
States, and the United States, the District of Columbia, or a State or 
local government is a party to the case. An employee must use annual 
leave or leave without pay to appear as a witness when the United 
States, the District of Columbia, or a State or local government is not 
a party.
    (2) Attendance fee. An employee who appears on behalf of the United 
States is not entitled to receive an attendance fee. An employee who 
appears on behalf of a party other than the United States while in 
official duty status or while on court leave should request an 
attendance fee from the court, authority, or party which caused the 
employee to be summoned. Such fee shall be remitted to the employing 
agency. An employee who must use annual leave or leave without pay to 
appear as a witness may retain an attendance fee which he or she 
receives.



Sec. 21.3  Aliens.

    (a) Aliens entitled to payment of $30 per day. The following aliens 
are entitled to witness fees and allowances provided in Sec. 21.4:
    (1) Aliens lawfully admitted for permanent residence (documentary 
evidence: Form I-151 or Form 1-551, Alien Registration Receipt Card);
    (2) Aliens lawfully admitted in one of the nonimmigrant categories 
described in 8 U.S.C. 1101(a)(15) (documentary evidence: unexpired Form 
1-94, Arrival-Departure Record). But see below Sec. 21.3(b);
    (3) Aliens admitted as refugees under 8 U.S.C. 1157 and aliens 
granted asylum under 8 U.S.C. 1158 (documentary evidence: Form I-94, 
Arrival Departure Record, indicating admission as refugee under 8 U.S.C. 
1157 or granting asylum under 8 U.S.C. 1158, employment authorized);
    (4) Aliens who have rendered themselves amenable to deportation 
proceedings, but have not admitted deportability or have not been 
determined to be deportable pursuant to section 242 of the Immigration 
and Nationality Act (8 U.S.C. 1252).
    (b) Aliens entitled to payment of $1 per day. An alien who is 
``excludable'' in accordance with 8 U.S.C. 1226, but whose removal is 
stayed by the Attorney General (in accordance with 8 U.S.C. 1227(d)) 
because:
    (1) The testimony of the alien is necessary on behalf of the United 
States in the prosecution of offenders against the United States, or
    (2) The testimony of the alien is necessary on behalf of an indigent 
criminal defendant in accordance with Rule 17(b) of the Federal Rules of 
Criminal Procedures,

is entitled to a $1 per day witness fee. No other fees and allowances 
are authorized.
    (c) Aliens not entitled to payment. An alien who has been paroled 
into the United States for prosecution pursuant to 8 U.S.C. 1182(d)(5) 
(documentary evidence: Form I-94, Arrival-Departure Record, Parole 
Edition), or an alien

[[Page 409]]

who has admitted belonging to a class of aliens who are deportable, or 
an alien who has been determined pursuant to 8 U.S.C. 1252(b) to be 
deportable (documentary evidence: decision by a Special Inquiry Officer, 
Board of Immigration Appeals, or court), is prohibited from receiving 
fees and allowances in accordance with 28 U.S.C. 1821(e).
    (d) Doubtful cases. If the Immigration and Naturalization Service 
advises that the alien has admitted deportability, or that he or she was 
paroled into the United States for prosecution, or that deportation 
proceedings have been completed against the alien with a result 
favorable to the Government, no payment under 28 U.S.C. 1821 may be 
made.



Sec. 21.4  Fees and allowances of fact witnesses.

    The fees and allowances of fact witnesses, other than those covered 
by Sec. 21.2, attending at any judicial proceeding, shall be a follows:
    (a) Fee. A witness shall be paid an attendance fee of $30 per day 
for each day's attendance. A witness shall also be paid the attendance 
fee for the time necessarily occupied in going to and returning from the 
place of attendance. However, if both attendance and travel occur on the 
same day, a witness is entitled to only one fee.
    (b) Allowable transportation expenses. A witness shall be entitled 
to transportation expenses based on the means of transportation 
reasonably utilized (based on the nature, duration, location and 
distance of travel) and the distance necessarily traveled from and to 
such witness' residence by the shortest practical route and the fastest 
means of transportation available in going to and returning from the 
place of attendance. Additional costs incurred (including attendance 
fees and subsistence allowances) because of a slower means of 
transportation must be justified for consideration.
    (1) A witness who travels by regularly scheduled common carrier 
shall be paid for the actual expenses of transportation at the most 
economical rate reasonably available. A receipt or other evidence of 
actual cost shall be furnished.
    (2) A witness who travels by privately owned vehicle shall be paid a 
transportation allowance equal to the mileage allowance paid for 
official travel of employees of the Federal Government under the 
provisions of 5 U.S.C. 5704. However, when two or more witnesses travel 
in the same privately owned vehicle, only the witness incurring the 
expense shall receive the mileage allowance.
    (3) A witness incurring incidental transportation expenses, such as 
taxi fares between the place of attendance, residence or lodging and the 
carrier terminals; bridge, road and tunnel tolls; ferry fares; and 
parking fees shall be paid in full for such expenses. Receipts or other 
evidence of actual payment are required for all parking fees (if 
available) and all other single items costing more than $25.
    (4) First-class travel by witnesses requires the same justification 
and approval required for first-class travel by employees of the Federal 
Government.
    (c) Subsistence allowance. A witness (other than a witness detained 
in custody) who is required to be away from his or her residence 
overnight is entitled to a subsistence allowance. A witness who is not 
required to be away from his or her residence overnight is not entitled 
to a subsistence allowance. The witness' subsistence allowance shall not 
exceed either the per diem rate or the actual subsistence allowance rate 
prescribed for Government employees for the place of attendance. These 
rates are established by the Administrator, General Services, for areas 
within the conterminous United States; the Secretary of Defense for 
areas of the United States other than conterminous; or the Secretary of 
State as published in the Standardized Regulations (Government 
Civilians, Foreign Areas) for foreign areas. The witness' subsistence 
allowance shall consist of a meal and miscellaneous expense portion and 
a lodging portion. When an overnight stay is required, the witness shall 
be entitled to:
    (1) The meal and miscellaneous expense portion for each day (or 
partial day) the witness is required to remain away from his or her 
residence and

[[Page 410]]

    (2) The lodging portion for each night the witness is required to 
incur a lodging expense.

The meal and miscellaneous expense portion shall be 50% of the 
authorized subsistence allowance rate rounded to the next whole dollar 
in an actual subsistence rate area, or 45% of the per diem rate rounded 
to the next whole dollar in a per diem area. The lodging portion shall 
be the difference between the meal and miscellaneous expense portion and 
the authorized rate.
    (d) Detained witness fee. A witness (other than an alien covered by 
Sec. 21.3) detained in custody pursuant to 18 U.S.C. 3149 for want of 
security for his or her appearance shall receive subsistence in kind and 
shall be paid a single daily attendance fee for each day the witness is 
detained. A witness in custody for purposes other than 18 U.S.C. 3149 is 
ineligible to receive the attendance and subsistence fees provided by 
this section.



Sec. 21.5  Use of table of distances.

    Mileage payable to witnesses under 28 U.S.C. 1821 shall be computed 
on the basis of odometer readings or the highway distances as stated in 
the Rand McNally Standard Highway Mileage Guide or in any generally 
accepted highway mileage guide which contains a shortline nationwide 
table of distances. However, with respect to travel in areas for which 
no such highway mileage guide exists, mileage payable under 28 U.S.C. 
1821 shall be based on the lesser of either (a) the route of travel 
actually employed or (b) a usually traveled route.



Sec. 21.6  Proceedings in forma pauperis.

    Title 28 U.S.C. 1915 provides for the commencement, prosecution or 
defense of any suit, action, or proceeding without prepayment of fees 
and costs. Witnesses shall attend as in other cases.
    (a) Civil cases. There are currently no provisions for payment of 
witnesses called by the indigent. If the indigent party prevails, 
witness fees and expenses may be taxed as costs in accordance with 28 
U.S.C. 1920.
    (b) Criminal cases. Rule 17(b), Federal Rules of Criminal Procedure, 
requires that fact witnesses subpoenaed on behalf of an indigent 
defendant be paid in the same manner as witnesses called on behalf of 
the Government. The attendance must be certified by the presiding 
officer of the court. The expenses of Federal Government employees are 
treated in the same manner as they are treated when the employee is 
called by a Government attorney.



Sec. 21.7  Certification of witness attendance.

    In any case in which the U.S. Department of Justice, or office or 
organization thereof, is a party, the Department of Justice shall pay 
all fees and allowances of witnesses, except for those witnesses as 
defined in Sec. 21.2, paragraph (d)(1), on the certification of the 
following officials: The U.S. Attorney, an Assistant U.S. Attorney, a 
U.S. Trustee, or the U.S. Department of Justice attorney who actually 
conducts the case. In criminal proceedings in forma pauperis or in 
proceedings before a U.S. Commissioner, U.S. Magistrate or U.S. Parole 
Commission Hearing Examiner, the Department of Justice shall pay all 
fees and allowances of witnesses on the certification of the U.S. 
District Judge hearing the case or such Commissioner, Magistrate, or 
Hearing Examiner.