B-119969, MAR. 21, 1969

B-119969, MAR. 21, 1969

TO MR. THOMAS:

YOUR LETTER OF FEBRUARY 17, 1969, REQUESTS RECONSIDERATION OF OUR DECISIONS TO THE EFFECT THAT AN EMPLOYEE PERFORMING JURY SERVICE IN A STATE OR FEDERAL COURT MUST TAKE COURT LEAVE AND HAVE HIS JUROR'S FEES CREDITED AGAINST HIS PAY OR WHETHER, AT HIS OPTION, HE MAY TAKE ANNUAL LEAVE AND KEEP THE FEES.

AS STATED IN YOUR LETTER THE PROVISIONS OF LAW GOVERNING THIS MATTER ARE 5 U.S.C. 5515, 5 U.S.C. 5537 AND 5 U.S.C. 6322, AS FOLLOWS:

"5515. CREDITING AMOUNTS RECEIVED FOR JURY SERVICE IN STATE COURTS

"AN AMOUNT RECEIVED BY AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA FOR JURY SERVICE IN A STATE COURT FOR A PERIOD DURING WHICH THE EMPLOYEE OR INDIVIDUAL IS ENTITLED TO LEAVE UNDER SECTION 6322 OF THIS TITLE SHALL BE CREDITED AGAINST PAY PAYABLE BY THE UNITED STATES OR THE DISTRICT OF COLUMBIA TO THE EMPLOYEE OR INDIVIDUAL.'

"5537. FEES FOR JURY SERVICE IN COURTS OF THE UNITED STATES

"AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY NOT RECEIVE FEES FOR JURY SERVICE IN A COURT OF THE UNITED STATES.'

"6322. LEAVE FOR JURY SERVICE

"EXCEPT AS PROVIDED BY SECTION 5515 OF THIS TITLE, THE PAY OF AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY NOT BE REDUCED DURING A PERIOD OF ABSENCE FOR JURY SERVICE IN A STATE COURT OR A COURT OF THE UNITED STATES BECAUSE OF THE ABSENCE. THE PERIOD OF ABSENCE FOR JURY SERVICE IS WITHOUT DEDUCTION FROM OTHER LEAVE OF ABSENCE AUTHORIZED BY STATUTE.'

IT IS YOUR VIEW THAT THE APPLICABLE STATUTES DO NOT REQUIRE A DENIAL OF ANNUAL LEAVE FOR SERVICE ON JURIES IN STATE COURTS AND YOU QUESTION THE REASON FOR CONTINUED APPLICATION OF THE RULE OF OUR DECISION, B 119969, MARCH 3, 1955 (ALSO, SEE B-119969, MAY 20, 1954; 27 COMP. GEN. 3; AND B- 135346, MARCH 31, 1958, AND AUGUST 16, 1967), HOLDING THAT ANNUAL LEAVE MAY NOT BE SUBSTITUTED FOR COURT LEAVE AVAILABLE UNDER THE ABOVE CITED PROVISIONS OF LAW.

AS STATED IN OUR DECISION B-119969, MAY 20, 1954,"THE REQUIREMENTS OF THE STATUTE ARE MANDATORY AND LEAVE NO DISCRETION ON THE PART OF THE ADMINISTRATIVE OFFICE * * *" CITING 27 COMP. GEN. 83. THE CLEAR STATEMENT OF 5 U.S.C. 6322 IS THAT "THE PERIOD OF ABSENCE FOR JURY SERVICE IS WITHOUT DEDUCTION FROM OTHER LEAVE OF ABSENCE AUTHORIZED BY STATUTE.' THE EFFECT OF THE LAW IS IN NO WAY THAT OF DENYING AN EMPLOYEE ANNUAL LEAVE. ITS INTENT, APPLIED BY OUR DECISIONS, IS TO PRESERVE LEAVE RIGHTS WITHOUT DIMINUTION RESULTING FROM JURY SERVICE.

YOUR LETTER REFERS TO OTHER DECISIONS OF OUR OFFICE, 27 COMP. GEN. 293 AND 45 COMP. GEN. 251, ALLOWING PAYMENT OF JURY FEES TO A FEDERAL EMPLOYEE SERVING AS A JUROR IN EITHER A UNITED STATES OR STATE COURT ON A HOLIDAY, AND TO THE DECISION IN 24 COMP. GEN. 450, HOLDING THAT JURY FEES MAY BE RETAINED WHEN THE JURY SERVICE OCCURS DURING A PERIOD WHEN THE EMPLOYEE IS IN NONPAY STATUS. THOSE DECISIONS WERE PREDICATED ON THE FACT THAT THERE WAS NO DIMINUTION OF PAY OR ANNUAL LEAVE BY REASON OF THE JURY SERVICE.

REGARDLESS OF WHETHER AN EMPLOYEE MAY DESIRE TO USE ANNUAL LEAVE FOR THE PURPOSE OF SERVING ON A JURY, THE FACT REMAINS THAT HIS ANNUAL LEAVE IS BEING DIMINISHED BY REASON THEREOF, A SITUATION WHICH IN OUR VIEW IS PROHIBITED BY THE STATUTORY PROVISIONS PREVIOUSLY QUOTED. ACCORDINGLY, WE FIND NO BASIS FOR REVERSING OUR PRIOR DECISIONS IN THIS MATTER.