By: Undisputed Legal/Subpoena Service Department
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)
The attendance fee for Federal subpoenas is governed by and described in 28 USC 1821. Witness fees are $40.00 per day and $.56 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 $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 2012 is $.56 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 Mapquest, Streets and Trips, or Rand McNally.
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)
FRCivP § 45 Service of a Federal Subpoena
(1) A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or an officer or agency thereof, fees and mileage need not be tendered. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b).
Title 28 U.S.C. § 1821. – Per diem and mileage generally; subsistence
(a) (1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate Judge, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section.
(2) As used in this section, the term ”court of the United States” includes, in addition to the courts listed in section 451 of this title, any court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States.
(b) A witness shall be paid an attendance fee of $40 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 at the beginning and end of such attendance or at any time during such attendance.
(c) (1) A witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness’s residence by the shortest practical route in going to and returning from the place of attendance. Such a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished.
(2) A travel allowance 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 shall be paid to each witness who travels by privately owned vehicle. Computation of mileage under this paragraph shall be made on the basis of a uniformed table of distances adopted by the Administrator of General Services.
(3) Toll charges for toll roads, bridges, tunnels, and ferries, taxicab fares between places of lodging and carrier terminals, and parking fees (upon presentation of a valid parking receipt), shall be paid in full to a witness incurring such expenses.
(4) All normal travel expenses within and outside the judicial district shall be taxable as costs pursuant to section 1920 of this title.
(d) (1) A subsistence allowance shall be paid to a witness when an overnight stay is required at the place of attendance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day.
(2) A subsistence allowance for a witness shall be paid in an amount not to exceed the maximum per diem allowance prescribed by the Administrator of General Services, pursuant to section 5702(a) of title 5, for official travel in the area of attendance by employees of the Federal Government.
(3) A subsistence allowance for a witness attending in an area designated by the Administrator of General Services as a high-cost area shall be paid in an amount not to exceed the maximum actual subsistence allowance prescribed by the Administrator, pursuant to section 5702(c)(B) of title 5, for official travel in such area by employees of the Federal Government.
(4) When a witness is detained pursuant to section 3144 of title 18 for want of security for his appearance, he shall be entitled for each day of detention when not in attendance at court, in addition to his subsistence, to the daily attendance fee provided by subsection (b) of this section.
(e) An alien who has been paroled into the United States for prosecution, pursuant to section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182)(5), or an alien who either has admitted belonging to a class of aliens who are deportable or has been determined pursuant to section 240 of such Act (8 U.S.C. 1252(b) to be deportable, shall be ineligible to receive the fees or allowances provided by this section.
(f) Any witness who is incarcerated at the time that his or her testimony is given (except for a witness to whom the provisions of section 3144 of title 18 apply) may not receive fees or allowances under this section, regardless of whether such a witness is incarcerated at the time he or she makes a claim for fees or allowances under this section
Title 5 USC § 5704. – Mileage and related allowances
(a) (1) Under regulations prescribed under section 5707 of this title, an employee who is engaged on official business for the Government is entitled to a rate per mile established by the Administrator of General Services, instead of the actual expenses of transportation, for the use of a privately owned automobile when that mode of transportation is authorized or approved as more advantageous to the Government. In any year in which the Internal Revenue Service establishes a single standard mileage rate for optional use by taxpayers in computing the deductible costs of operating their automobiles for business purposes, the rate per mile established by the Administrator shall not exceed the single standard mileage rate established by the Internal Revenue Service.
(2) Under regulations prescribed under section 5707 of this title, an employee who is engaged on official business for the Government is entitled to a rate per mile established by the Administrator of General Services, instead of the actual expenses of transportation, for the use of a privately owned airplane or a privately owned motorcycle when that mode of transportation is authorized or approved as more advantageous to the Government.
(b) A determination that travel by a privately owned vehicle is more advantageous to the Government is not required under subsection (a) of this section when payment on a mileage basis is limited to the cost of travel by common carrier including per diem.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, in any case in which an employee who is engaged on official business for the Government chooses to use a privately owned vehicle in lieu of a Government vehicle, payment on a mileage basis is limited to the cost of travel by a Government vehicle.
(d) In addition to the rate per mile authorized under subsection (a) of this section, the employee may be reimbursed for –
(1) parking fees;
(2) ferry fees;
(3) bridge, road, and tunnel costs; and
(4) airplane landing and tie-down fees