(a) Request. Parties who have complied with 1201.73(c), as applicable, and wish to obtain subpoenas that would require the attendance and testimony of witnesses, or subpoenas that would require the production of documents or other evidence under 5 U.S.C. 1204(b)(2)(A), should file their motions for those subpoenas with the judge. The Board has authority under 5 U.S.C. 1204(b)(2)(A) to issue a subpoena requiring the attendance and testimony of any individual regardless of location and for the production of documentary or other evidence from any place in the United States, any territory or possession of the United States, the Commonwealth of Puerto Rico or the District of Columbia. Subpoenas are not ordinarily required to obtain the attendance of Federal employees as witnesses because Federal agencies and their employees must comply with 5 CFR 5.4 and § 1201.33.
(b) Form. Parties requesting subpoenas must file their requests, in writing, with the judge. Each request must identify specifically the testimony, documents, or other evidence desired.
(c) Relevance. The request must be supported by a showing that the evidence sought is directly material to the issues involved in the appeal.
(d) Rulings. Any judge who does not have the authority to issue subpoenas will refer the request to an official with authority to rule on the request, with a recommendation for decision. The official to whom the request is referred will rule on the request promptly. Judges who have the authority to rule on these requests themselves will do so directly.
[54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30608, May 27, 2005; 77 FR 62367, Oct. 12, 2012; 89 FR 72962, Sept. 9, 2024]
Notes of Decisions
Carl L. Baker v. Dep't of Health & Human Servs., 912 F.2d 1448 (Fed. Cir. 1990).
“The AU’s August 23, 1988 order directed Baker to file a motion for a subpoena of all non-federal witnesses by September 16, 1988, pursuant to 5 C.F.R. § 1201.81 (b). Baker has failed to point to any evidence in the record that demonstrates that he filed a motion for a subpoena…”
Diaz v. United States Postal Serv., 658 F. Supp. 484 (E.D. Cal. 1987).
“(5 C.F.R. 1201.81). Where a party has a right to subpeona witnesses, and he does not do so, he cannot later complain of the fact that he has been denied the right of confrontation of adverse witnesses and the right of cross-examination.”
Timothy Joel v. Dep't of Just. (MSPB 2023).
· cites it 4× “5 C.F.R. § 1201.81 (a). A subpoena request must “be supported by a showing that the evidence sought is directly material to the issues involved in the appeal.”
Thasha A. Boyd v. Dep't of Labor (MSPB 2016).
· cites it 2× “” 5 C.F.R. § 1201.81 (b). The request also must “be supported by a showing that the evidence sought is directly material to the issues involved in the appeal.”
Moten v. United States Postal Serv., 229 Ct. Cl. 796 (Ct. Cl. 1982).
“The overtime question was, to begin with, a collateral issue, and the general practice as to other employees is extremely tangential to the existence vel non of a personal animus.”
Jose E Rosario-Fabregas v. Dep't of the Army (MSPB 2025).
“See 5 C.F.R. § 1201.81 (c). Plus, we do not find it appropriate to issue a subpoena in connection with appeals that are, at the same time, being dismissed, thus removing them from the Board’s docket of pending cases.”
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