B-166056, MARCH 21, 1969, 48 COMP. GEN. 630

B-166056, MARCH 21, 1969, 48 COMP. GEN. 630

LEAVES OF ABSENCE--COURT--JURY DUTY--TEMPORARY EMPLOYEES AN EMPLOYEE WHO HAD SERVED ON JURY DUTY BOTH UNDER HIS CURRENT 4 YEAR TERM APPOINTMENT MADE PURSUANT TO SECTION 316.301 OF THE CIVIL SERVICE COMMISSION REGULATIONS AND UNDER A PRIOR 1-YEAR TEMPORARY LIMITED APPOINTMENT AUTHORIZED AS PRESCRIBED BY SECTION 316.401 OF THE REGULATIONS MAY BE GRANTED COURT LEAVE FOR THE JURY DUTY PERFORMED UNDER BOTH APPOINTMENTS, 5 U.S.C. 6322 AUTHORIZING THAT THE COMPENSATION OF "ANY EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA" SHALL NOT BE DIMINISHED BY REASON OF JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES, THE RESTRICTION ON THE GRANTING OF A LEAVE OF ABSENCE WITH PAY TO TEMPORARY EMPLOYEES FOR THE PURPOSE OF SERVING ON JURY DUTY IS NOT REQUIRED. 38 COMP. GEN. 307; 20 ID. 133; ID. 145; AND B-127804, DATED MAY 11, 1956, MODIFIED.

TO WAYNE D. SEXTON, DEFENSE SUPPLY AGENCY, MARCH 21, 1969:

WE REFER TO YOUR LETTER OF JANUARY 27, 1969, WITH ENCLOSURES, REFERENCE DDTC-R, REQUESTING OUR DECISION WHETHER AN EMPLOYEE OF THE DEFENSE DEPOT TRACY IS ENTITLED TO BE GRANTED COURT LEAVE FOR THE PURPOSE OF PERFORMING JURY DUTY UNDER 5 U.S.C. 6322.

THE EMPLOYEE IN QUESTION IS SERVING UNDER A 4-YEAR TERM APPOINTMENT, EFFECTIVE APRIL 7, 1968, WHICH EXPIRES NOT LATER THAN APRIL 6, 1972. TERM APPOINTMENTS ARE AUTHORIZED UNDER SECTION 316.301 OF THE CIVIL SERVICE COMMISSION'S REGULATIONS, AS FOLLOWS:

THE COMMISSION MAY AUTHORIZE AN AGENCY TO MAKE A TERM APPOINTMENT FOR A PERIOD OF MORE THAN 1 YEAR ON REQUEST OF THE AGENCY AND AFTER DETERMINATION BY THE COMMISSION THAT THE NEEDS OF THE SERVICE SO REQUIRE AND THAT THE EMPLOYMENT NEED IS FOR A LIMITED PERIOD OF 4 YEARS OR LESS.

WE NOTE, HOWEVER, THAT PRIOR TO HIS CONVERSION TO THE 4-YEAR TERM APPOINTMENT THE EMPLOYEE WAS SERVING UNDER A 1-YEAR APPOINTMENT (TEMPORARY LIMITED) AND THAT CERTAIN OF THE DAYS FOR WHICH COURT LEAVE IS REQUESTED WERE DURING THE PERIOD OF THE 1-YEAR APPOINTMENT. TEMPORARY LIMITED APPOINTMENTS ARE AUTHORIZED FOR A DEFINITE PERIOD OF 1 YEAR OR LESS UNDER SECTION 316.401 OF THE COMMISSION'S REGULATIONS.

SECTION 1 OF THE ACT OF JUNE 29, 1940, 54 STAT. 689 (NOW 5 U.S.C. 6322) PROVIDES:

* * * THAT THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES SHALL NOT BE DIMINISHED DURING THE TERM OF SUCH JURY SERVICE BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 3, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW.

IN DECISION OF SEPTEMBER 7, 1940, 20 COMP. GEN. 133, OUR OFFICE RULED THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY FOR JURY DUTY UNDER THE ABOVE-QUOTED ACT. WITH THE EXCEPTION OF TEMPORARY INDEFINITE EMPLOYEES (SEE 27 COMP. GEN. 300) THAT RULE HAS BEEN FOLLOWED IN SUBSEQUENT DECISIONS. SEE 38 COMP. GEN. 307. HOWEVER, SINCE THE STATUTE, BY ITS TERMS, APPLIES TO "ANY EMPLOYEE OF TEH UNITED STATES OR OF THE DISTRICT OF COLUMBIA" IT APPEARS THAT OUR ORIGINAL CONSTRUCTION OF THE ACT WAS UNNECESSARILY RESTRICTIVE. UPON FURTHER CONSIDERATION OF THE STATUTORY LANGUAGE AS WELL AS THE LEGISLATIVE PURPOSE OF THE ACT, WE NOW HOLD THAT TEMPORARY EMPLOYEES ARE ENTITLED TO COURT LEAVE FOR JURY DUTY UNDER 5 U.S.C. 6322. THEREFORE, IF OTHERWISE PROPER, COURT LEAVE MAY BE GRANTED TO THE EMPLOYEE HERE INVOLVED FOR THE DAYS ON WHICH HE PERFORMED JURY DUTY.

TO THE EXTENT THAT OUR PRIOR DECISIONS ARE INCONSISTENT WITH THE VIEWS EXPRESSED HEREIN, SUCH DECISIONS ARE HEREBY MODIFIED.