For firms that regularly litigate in the Court of Federal Claims, the question of compensating fact witnesses is not theoretical—it is a practical concern. Organizing a case often depends on the cooperation of former employees, contractors, and third parties who must take time away from their own obligations to assist in trial preparation and testimony.
The starting point for this practice is 18 U.S.C. § 201, the Federal Bribery and Anti-Gratuity Statute. While much of the discussion around this statute focuses on prohibitions, practitioners should pay equally close attention to subsection (d), which provides an important and often overlooked clarification.
Section 201(d): The Statute’s Built-In Safe Harbor
Section 201(d) makes clear that the statute does not prohibit the payment of witness fees or the reasonable costs associated with participation in judicial proceedings. In other words, Congress explicitly recognized that compensating witnesses—within limits—is a legitimate and necessary part of the legal process.
This provision is critical because it reinforces a practical reality: litigation imposes real burdens on fact witnesses. Time spent preparing for testimony, meeting with counsel, traveling, and appearing in court is time taken away from work and personal obligations. Section 201(d) ensures that reimbursing or compensating those burdens is not swept into the statute’s prohibitions.
Applying Section 201(d) in Practice
From a Court of Federal Claims perspective, subsection (d) aligns with how complex cases actually proceed. Fact witnesses are often no longer employed by relevant agencies or contractors, and their participation may require substantial time commitments. Reasonable compensation for that time—structured as hourly payments or reimbursements—is consistent with both the statute and standard litigation practice. The key is how those payments are framed and implemented. Section 201(d) protects:
- Standard witness fees and statutory attendance payments;
- Reimbursement of expenses, such as travel and lodging; and
- Reasonable compensation for time lost, so long as it reflects the witness’s actual burden.
What it does not protect are payments that go beyond mere compensation and begin to look like bribes or gratuities tied to the substance of testimony. Even with subsection (d)’s safe harbor, the boundary remains clear. Payments must not be contingent on the substance of the witness’s testimony or the outcome of the case. Any arrangement that suggests a witness is being rewarded for favorable or tailored testimony risks undermining the judicial process and collapsing the distinction that § 201 is designed to maintain.
A Practical Takeaway
For firms that routinely try cases in the Court of Federal Claims, Section 201(d) provides essential clarity. It confirms that compensating non-expert witnesses for their time is not only permissible, but anticipated by the statutory framework.
Properly structured payments—reasonable in amount, tied to time and expenses, and wholly independent of testimony—fit squarely within the statute’s allowance. Far from creating risk, subsection (d) provides the foundation for a common-sense approach to witness participation in complex federal litigation
