(a) Federal employees. Employees of a Federal agency or corporation testifying in any Board proceeding or making a statement for the record will be in official duty status and will not receive witness fees.
(b) Other witnesses. Other witnesses (whether appearing voluntarily or under subpoena) shall be paid the same fee and mileage allowances which are paid subpoenaed witnesses in the courts of the United States.
(c) Payment of witness fees and travel costs. The party requesting the presence of a witness must pay that witness' fees. Those fees must be paid or offered to the witness at the time the subpoena is served, or, if the witness appears voluntarily, at the time of appearance. A Federal agency or corporation is not required to pay or offer witness fees in advance.
(d) A witness who is denied the witness fees and travel costs required by paragraphs (b) and (c) of this section may file a written request that the judge order the party who requested the presence of the witness to provide such fees and travel costs. The judge will act on such a request promptly and, where warranted, will order the party to comply with the requirements of paragraphs (b) and (c) of this section.
(e) An order obtained under paragraph (d) of this section may be enforced as provided under subpart F of this part.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 17045, Apr. 9, 1997; 73 FR 6833, Feb. 6, 2008]
Notes of Decisions
John H. Kerr v. Nat'l Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984).
· cites it 2× “Petitioner requested attorney fees by motion filed May 27, 1981, well beyond the 10-day time period prescribed by 5 C.F.R. § 1201.37 (a)(2). 5 The presiding official denied the motion after affording petitioner an opportunity to show “good cause” for the untimely request, and…”
Stanley Sterner v. Dep't of the Army, 711 F.2d 1563 (Fed. Cir. 1983).
“The instant case, however, does not present such extraordinary hardship, nor does it present an example of such egregious agency action that we will overturn the board’s judgment that an award is not justified.”
Tyler Hopkins, Jr. v. Merit Sys. Prot. Bd., 725 F.2d 1368 (Fed. Cir. 1984).
“” 5 C.F.R. § 1201.37 (a)(2) (1982). Counting 10 calendar days from the final decision of March 24 here at issue, one reaches April 3, 1982, a Saturday, to be counted as April 5, the business day Monday.”
Kim L. Hamilton v. Merit Sys. Prot. Bd., 75 F.3d 639 (Fed. Cir. 1996).
“In affirming that rejection, this court examined the statutory provision respecting the appropriate respondent and concluded that because the employing agency had taken no action appealed to the Board respecting the attorney fee request and was essentially a mere bystander, the…”
Daniels v. Wick, 655 F. Supp. 26 (D.D.C. 1985).
“5 C.F.R. 1201.37(a)(2). In this case, the Board’s decision on attorney’s fees was made concomitant to its decision on the merits.”
Phoebe Pfaehler v. Merit Sys. Prot. Bd., 783 F.2d 187 (Fed. Cir. 1986).
“The purpose of the ten-day limit in 5 C.F.R. § 1201.37 (a) can not be to trap the unsophisticated, or to provide an excuse for the denial of meritorious cases.”
Daniel Gonzalez v. Dep't of Agric. (MSPB 2024).
“IAF, Tab 7 at 3-4; see 5 C.F.R. § 1201.37 (a) (Federal employees receive no fees for testifying before the Board), (b)-(c) (for any other witness, the requesting party must pay the same fee and mileage allowances which are paid to subpoenaed witnesses in the courts of the United…”
— 5 C.F.R. § 1201.37(a)(2) — 2 cases
Daniels v. Wick, 655 F. Supp. 26 (D.D.C. 1985).
“5 C.F.R. 1201.37(a)(2). In this case, the Board’s decision on attorney’s fees was made concomitant to its decision on the merits.”
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