5 C.F.R. §§ 1201.81–1201.85

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.

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.

Relevance. The request must be supported by a showing that the evidence sought is directly material to the issues involved in the appeal.

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.

Any person who is at least 18 years of age and who is not a party to the appeal may serve a subpoena. The means prescribed by applicable state law are sufficient. The party who requested the subpoena, and to whom the subpoena has been issued, is responsible for serving the subpoena.

A subpoena directed to an individual outside the territorial jurisdiction of any court of the United States may be served in the manner described by the Federal Rules of Civil Procedure for service of a subpoena in a foreign country.

A party requesting the presence of a non-federal employee witness must pay that witness' fees and travel expenses in accordance with 5 U.S.C. 1204(b)(3) and 28 U.S.C. 1821. Those fees must be paid or offered to the witness at the time the subpoena is served.

By delivering it to the witness in person,

By registered or certified mail,

By delivering the subpoena to a responsible person (named in the document certifying the delivery) at the residence or place of business (as appropriate) of the person for whom the subpoena was intended, or

If a person who has been served with a Board subpoena fails or refuses to comply with its terms, the party seeking compliance may file a written motion for enforcement with the judge. That party must present the document certifying that the subpoena was served and, except where the witness was required to appear before the judge, must submit an affidavit or sworn statement under 28 U.S.C. 1746 (see appendix IV) describing the failure or refusal to obey the subpoena. A written motion must be served upon the person who is alleged to be in noncompliance.

The person who is alleged to be in noncompliance may file a response within 10 days. A party must file the response with the judge and serve it on the other parties. Non-parties must file their response with the judge, who will enter the response into the record. The judge may waive § 1201.14(d) to accept a nonparty's response by email. Any party may file a reply to the response within 10 days after the response has been entered into the record.

In ruling on a motion to quash, judges may rely on Fed.R.Civ.P. 45 and applicable case law. Upon a finding by the judge of failure to obey a subpoena, the Board, in accordance with 5 U.S.C. 1204(c), may then ask an appropriate U.S. district court to enforce the subpoena. If the person who has failed or refused to comply with a Board subpoena is located in a foreign country, the U.S. District Court for the District of Columbia will have jurisdiction to enforce compliance, to the extent that a U.S. court can assert jurisdiction over an individual in the foreign country.

Upon application by the Special Counsel, the Board may seek court enforcement of a subpoena issued by the Special Counsel in the same manner in which it seeks enforcement of Board subpoenas, in accordance with 5 U.S.C. 1212(b)(3).