[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 ADMINISTRATION12002-07-012002-07-01falseWITNESS FEES21PART 21JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 21--WITNESS FEES--Table of Contents
21.2 Employees of the United States serving as witnesses.
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
(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
(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
(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
(i) To testify or produce official records on behalf of the United
(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
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
(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
(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
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))
(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
is entitled to a $1 per day witness fee. No other fees and allowances
(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
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
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
(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
(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
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
(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