What is the Witness Fee for Federal Subpoenas?
When a witness is served with a federal Subpoena in a Civil Case compelling his or her attendance, the subpoena must accompany a fee for one day’s attendance and a mileage fee. If the Federal Government is subpoenaing the witness, “fees or mileage need not be tendered.” (FRCivP 45(b)(1)).
The attendance fee for Federal subpoenas is governed by and described in 28 USC 1821. Witness fees are $40.00 per day and $.57½ per mile, round trip from the witness’ residence to where they must appear. The subpoena must accompany the attendance fee, otherwise the service is invalid. The text of that statute is in the right sidebar.
The $40.00 is a “per diem” or daily fee. Witnesses attending multiple days are entitled to the fee each day their appearance is required.
In addition to the per diem fee, the witness is also entitled to receive compensation for travel. Although the most common calculation is on a mileage base, the law allows other compensation. If the witness uses a “common carrier” for travel, the actual expense for the most economical means of travel will be reimbursed. The compensation may be granted based upon the presentation of receipts, and by inference, the travel compensation may be tendered after the costs are incurred.
Another calculation of compensation is the payment based on mileage. The statute authorizes a mileage fee “equal to the mileage allowance which the Administrator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government.”
If the witness travels in a privately owned automobile, the statute allows mileage at “the rate per mile established by the Administrator (and) shall not exceed the single standard mileage rate established by the Internal Revenue Service.” (5 USC 574(a)(1)) Although the mileage fee cannot exceed the IRS rate, the amount is usually presumed to be the stated rate. The IRS rate for 2015 is $.57½ per mile.
So how is mileage calculated? The “mileage fee allowed by law” is based upon “a uniformed table of distances adopted by the Administrator of General Services.” The GSA’s adopted “uniformed table of distances” is a proprietary database from “ALK Technologies” and not available to the public without a subscription. The GSA formerly used information from the Department of Defense, Military Traffic Management Command, but their database is also unavailable.
Therefore there is no statutorily correct reference to calculate mileage. Following are a few suggestions. Whichever you use, be prepared later to document the method or to establish a company practice. The California Public Utilities Commission published a table of distances to and from every city in California, but the information is inaccurate because the distances are intended to regulate the trucking industry. Trucks are limited to roll on only larger roads and are not permitted to take short cuts on smaller roads. The California State Automobile Association or similar organization provides distances between two points and will answer phone inquiries. Most mapping programs, mapquest.com or googlemaps, etc. will calculate it also. The mileage calculation seems to be a fee to compensate miles actually driven and not a calculation of a distance “as the crow flies.”
A recent inquiry to the GSA revealed that the mileage is now determined by using any of the commonly known mapping programs such as Google or Mapquest.
There is an apparent conflict between 28 USC § 1821, the definition of the fees, and FRCivP § 45, which mandates the tendering of “the fees for one day’s attendance and the mileage.” 28 USC 1821 allows for compensation for travel based on mileage or travel expenses via common carrier, the latter only after presentation of receipts. If compensation for travel may be made after the expense is incurred in one instance, it follows that any insufficiency in mileage compensation could be paid likewise after service.
If the witness’ residence is unknown, it would seem reasonable to calculate the mileage from the witness’ business address. Any deficiency could be made up later.
In addition to the mileage fee, the witness may be entitled to (1) parking fees; (2) ferry fees; (3) bridge, road, and tunnel costs; and (4) airplane landing and tie-down fees.
Additionally, a “subsistence allowance” may be paid, such as overnight stays at a rate prescribed by the GSA. Each state and city has been rated under the Domestic Per Diem Rates page on the GSA web site.
Since witness fees are tendered “only if the person’s attendance is commanded”, the inference is that no witness fee needs to be tendered when subpoenaing records from a witness without requiring an attendance. The witness may later recover reasonable copying costs. See also Windsor v. Martindale, 175 F.R.D. 665, 670 (D. Colo. 1997)
Federal Witness Fee References page
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