B-12134, SEPTEMBER 11, 1940, 20 COMP. GEN. 145

B-12134: Sep 11, 1940

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ARE THE REGULAR PERMANENT EMPLOYEES OF THE UNITED STATES AND NOT TEMPORARY. 1940: I HAVE YOUR LETTER OF AUGUST 28. COPY OF WHICH IS ENCLOSED. IS SILENT WITH REGARD TO MILEAGE AND PER DIEM IN LIEU OF SUBSISTENCE FOR SUCH JURORS WHOSE RESIDENCES ARE NOT AT THE PLACES OF HOLDING COURT. IT SEEMS IMPORTANT THAT CLERKS OF THE UNITED STATES COURTS SHOULD HAVE DEFINITE INSTRUCTIONS FOR THEIR GUIDANCE. MAY WE REQUEST THAT THIS MATTER BE GIVEN PREFERRED ATTENTION IN ORDER THAT WE MAY HAVE YOUR RULING WITHIN THE SHORTEST POSSIBLE TIME? THIS REQUEST FOR EXPEDITIOUS RESPONSE IS MADE FOR THE REASON THAT IN MANY DISTRICTS REGULAR TERMS OF COURT COMMENCE IN SEPTEMBER. IS DATED AUGUST 14. READS AS FOLLOWS: I HAVE RECENTLY RECEIVED A COPY OF THE ACT APPROVED JUNE 29.

B-12134, SEPTEMBER 11, 1940, 20 COMP. GEN. 145

OFFICERS AND EMPLOYEES - FEDERAL JURY SERVICE - MILEAGE, SUBSISTENCE, LEAVE OF ABSENCE, ETC. SECTION 2 OF THE ACT OF JUNE 29, 1940, PUBLIC, NO. 676, WHICH PROHIBITS THE RECEIPT BY A FEDERAL EMPLOYEE OF ANY "COMPENSATION" FOR JURY SERVICE IN A FEDERAL COURT, DOES NOT PRECLUDE ALLOWING TO EMPLOYEES SERVING AS JURORS THE MILEAGE PAYMENTS AND MEALS AND LODGING IN KIND AUTHORIZED BY LAW FOR JURORS, IN ADDITION TO THEIR REGULAR COMPENSATION AS EMPLOYEES OF THE UNITED STATES, BUT DOES PRECLUDE PAYMENT OF THE PER DIEM ALLOWANCE FOR EACH DAY'S ATTENDANCE IN COURT AND FOR TRAVEL TIME PRESCRIBED BY SECTION 2 OF THE ACT OF APRIL 26, 1926. THE "EMPLOYEES OF THE UNITED STATES" ENTITLED TO COURT OR JURY LEAVE OF ABSENCE WITH PAY UNDER THE ACT OF JUNE 29, 1940, PUBLIC, NO. 676, WHEN SUMMONED TO JURY DUTY, ARE THE REGULAR PERMANENT EMPLOYEES OF THE UNITED STATES AND NOT TEMPORARY, SUBSTITUTE, AND "WHEN ACTUALLY EMPLOYED" PERSONNEL.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, SEPTEMBER 11, 1940:

I HAVE YOUR LETTER OF AUGUST 28, 1940, AS FOLLOWS:

A LETTER HAS BEEN RECEIVED FROM THE CLERK OF THE UNITED STATES DISTRICT COURT AT SIOUX FALLS, SOUTH DAKOTA, COPY OF WHICH IS ENCLOSED, REQUESTING AN INTERPRETATION OF THE ACT OF JUNE 29, 1940, PUBLIC, NO. 676, SEVENTY- SIXTH CONGRESS, WHICH PROVIDES FOR LEAVE OF ABSENCE WITH PAY FOR 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.

CLERKS OF UNITED STATES DISTRICT COURTS CERTIFY UPON ORDER OF COURT, FOR PAYMENT BY THE UNITED STATES MARSHAL OF THEIR RESPECTIVE JUDICIAL DISTRICTS, FEES AND MILEAGE OF JURORS, AT THE RATES PRESCRIBED IN TITLE 28, SECTIONS 600, 600A, AND 600B.

THE ACT OF JUNE 29, 1940, IS SILENT WITH REGARD TO MILEAGE AND PER DIEM IN LIEU OF SUBSISTENCE FOR SUCH JURORS WHOSE RESIDENCES ARE NOT AT THE PLACES OF HOLDING COURT, AND IT SEEMS IMPORTANT THAT CLERKS OF THE UNITED STATES COURTS SHOULD HAVE DEFINITE INSTRUCTIONS FOR THEIR GUIDANCE, WHICH INSTRUCTIONS WE SHALL NOT BE IN A POSITION TO ISSUE UNTIL RECEIPT OF AN INTERPRETATION OF THE APPLICATION OF THIS ACT.

MAY WE REQUEST THAT THIS MATTER BE GIVEN PREFERRED ATTENTION IN ORDER THAT WE MAY HAVE YOUR RULING WITHIN THE SHORTEST POSSIBLE TIME? THIS REQUEST FOR EXPEDITIOUS RESPONSE IS MADE FOR THE REASON THAT IN MANY DISTRICTS REGULAR TERMS OF COURT COMMENCE IN SEPTEMBER.

THE REFERRED-TO LETTER FROM THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA, IS DATED AUGUST 14, 1940, AND READS AS FOLLOWS:

I HAVE RECENTLY RECEIVED A COPY OF THE ACT APPROVED JUNE 29, 1940, BEING ( PUBLIC, NO. 676, 76TH CONGRESS, CHAPTER 446, 3D SESSION), AND RESPECTFULLY REQUEST INSTRUCTIONS AS TO THE INTERPRETATION THEREOF AS FOLLOWS:

1. DOES SECTION 2 WHEN CORRECTLY CONSTRUED, MEAN THAT A FEDERAL EMPLOYEE CALLED FOR JURY DUTY IN A UNITED STATES COURT, CANNOT BE PAID ANY SUM WHATSOEVER BY THE UNITED STATES, EITHER AS PER DIEM OR MILEAGE?

2. PLEASE ADVISE HOW THE CLERK IS TO DETERMINE WHO COMES WITHIN THE CLASSIFICATION OF ,EMPLOYEE OF THE UNITED STATES.'

THE ACT OF JUNE 29, 1940, PUBLIC, NO. 676, 54 STAT. 689, PROVIDES AS FOLLOWS:

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.

SEC. 2. ANY EMPLOYEE SPECIFIED IN SECTION 1 WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY COURT OF THE UNITED STATES SHALL NOT RECEIVE ANY COMPENSATION FOR SUCH SERVICE.

SEC. 3. THERE SHALL BE CREDITED AGAINST THE AMOUNT OF COMPENSATION PAYABLE BY THE UNITED STATES TO ANY EMPLOYEE SPECIFIED IN SECTION 1 FOR SUCH PERIOD AS SUCH EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE IN THE COURT OF ANY STATE ANY AMOUNTS WHICH SUCH EMPLOYEE MAY RECEIVE FROM SUCH STATE ON ACCOUNT OF SUCH JURY SERVICE.

SECTION 1 OF THE STATUTE PROVIDES THAT THE COMPENSATION OF AN EMPLOYEE SHALL NOT BE DIMINISHED DURING JURY SERVICE EITHER IN A UNITED STATES OR STATE COURT. THIS QUESTION HERE PRESENTED IS LIMITED TO EMPLOYEES WHO ARE CALLED TO JURY SERVICE IN UNITED STATES COURTS; HENCE, SECTION 3 OF THE STATUTE HAS NO APPLICATION TO THE QUESTIONS THUS PRESENTED. THE CLEAR PURPOSE AND INTENT OF THE STATUTE IS THAT AN EMPLOYEE OF THE UNITED STATES SHALL RECEIVE HIS REGULAR COMPENSATION OR PAY DURING THE TIME HE IS ABSENT ON ACCOUNT OF JURY SERVICE AND THAT THE PERIOD OF SUCH SERVICE SHALL NOT BE CHARGED AS ANNUAL LEAVE.

SECTION 2 OF THE ABOVE-QUOTED ACT DOES NOT PROHIBIT PAYMENT TO AN EMPLOYEE OF THE UNITED STATES WHO IS REQUIRED TO TRAVEL AWAY FROM HIS OFFICIAL HEADQUARTERS OR HOME TO SERVE AS A JURYMAN IN A UNITED STATES COURT, OF SUCH ALLOWANCES FOR TRAVEL AND SUBSISTENCE AS MAY BE AUTHORIZED BY LAW, IN ADDITION TO HIS REGULAR COMPENSATION AS AN EMPLOYEE OF THE UNITED STATES--- SUCH TRAVELING AND SUBSISTENCE ALLOWANCES NOT BEING "COMPENSATION" OR PAY FOR SERVICES RENDERED.

SECTION 277 OF THE JUDICIAL CODE, ACT OF MARCH 3, 1911, 36 STAT. 1164, PROVIDES AS FOLLOWS:

JURORS SHALL BE RETURNED FROM SUCH PARTS OF THE DISTRICT, FROM TIME TO TIME, AS THE COURT SHALL DIRECT, SO AS TO BE MOST FAVORABLE TO AN IMPARTIAL TRIAL, AND SO AS NOT TO INCUR AN UNNECESSARY EXPENSE, OR UNDULY BURDEN THE CITIZENS OF ANY PART OF THE DISTRICT WITH SUCH SERVICE.

SECTIONS 600A AND 600B OF TITLE 28, U.S.C. PROVIDE AS FOLLOWS:

600A. PER DIEM; MILEAGE. JURORS AND WITNESSES (OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT, AND DETAINED WITNESSES) IN THE UNITED STATES COURTS, INCLUDING THE DISTRICT COURT OF HAWAII, THE DISTRICT COURT OF PUERTO RICO, AND THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, WHO ATTEND, INCLUDING THOSE ATTENDING BEFORE UNITED STATES COMMISSIONERS, SHALL BE ENTITLED TO A PER DIEM FOR EACH DAY OF ACTUAL ATTENDANCE AND FOR EACH DAY NECESSARILY OCCUPIED IN TRAVELING TO ATTEND COURT, OR UPON THE COMMISSIONER, AND RETURN HOME, AND, IN ADDITION, MILEAGE AS PROVIDED IN SECTION 600B TO 600D OF THIS TITLE. ( APR. 26, 1926, C. 183, SEC. 1, 44 STAT. 323; MAY 17, 1932, C. 190, 47 STAT. 158.)

600B. AMOUNT OF PER DIEM AND MILEAGE FOR JURORS. JURORS ATTENDING IN SUCH COURTS, OR BEFORE SUCH UNITED STATES COMMISSIONERS, SHALL RECEIVE FOR EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME $4, AND 5 CENTS PER MILE FOR GOING FROM HIS OR HER PLACE OF RESIDENCE TO THE PLACE OF TRIAL OR HEARING, AND 5 CENTS PER MILE FOR RETURNING. ( APR. 26, 1926, C. 183, SEC. 2, 44 STAT. 323).

THE JUDICIARY APPROPRIATION, TITLE IV, ACT OF MAY 14, 1940, PUBLIC, 508, CONTAINS THE FOLLOWING ITEM:

FEES OF JURORS: FOR MILEAGE AND PER DIEMS OF JURORS; MEALS AND LODGING FOR JURORS IN UNITED STATES CASES WHEN ORDERED BY THE COURT, AND MEALS AND LODGING FOR JURORS IN ALASKA, AS PROVIDED BY SECTION 193, TITLE II, OF THE ACT OF JUNE 6, 1900 (28 U.S.C. 9, 557-570, 595, 596),AND COMPENSATION FOR JURY COMMISSIONERS, $5 PER DAY, NOT EXCEEDING THREE DAYS FOR ANY ONE TERM OF COURT, $1,970,000; PROVIDED, THAT THE COMPENSATION OF JURY COMMISSIONERS FOR THE DISTRICT OF COLUMBIA SHALL CONFORM TO THE PROVISIONS OF TITLE 18, CHAPTER 10, SECTION 341, OF THE CODE OF THE DISTRICT OF COLUMBIA, BUT SUCH COMPENSATION SHALL NOT EXCEED $250 EACH PER ANNUM.

UNDER THESE LAWS JURORS IN UNITED STATES COURTS, GENERALLY, ARE ENTITLED TO (1) MILEAGE AT THE RATE OF 5 CENTS PER MILE FOR TRAVELING "FROM HIS OR HER PLACE OR RESIDENCE TO THE PLACE OF TRIAL OR HEAR AND * * * FOR RETURNING; " (2) $4 PER DIEM FOR EACH DAY'S ATTENDANCE COURT AND FOR TIME NECESSARILY OCCUPIED IN GOING TO AND FROM THE SAME; AND (3) MEALS AND LODGING IN KIND WHEN ORDERED BY THE COURT, THAT IS, MEALS AND LODGINGS WHEN THE JURORS ARE REQUIRED TO BE KEPT TOGETHER IN THE CUSTODY OF A COURT OFFICIAL WHO ARRANGES FOR THEIR MEALS, ETC. HOWEVER, EMPLOYEES OF THE UNITED STATES WHO ARE SUMMONED TO SERVE AS JURORS IN THE UNITED STATES COURT MAY BE PAID ONLY SUCH ALLOWANCES IN ADDITION TO THEIR COMPENSATION AS ARE EXPRESSLY AUTHORIZED BY LAW.

MILEAGE AND COMPENSATION ALLOWANCES SUCH AS THOSE DESCRIBED UNDER (1) AND (3), SUPRA, DO NOT CONSTITUTE COMPENSATION OR PAY FOR SERVICES RENDERED. HENCE, SUCH ALLOWANCES TO FEDERAL EMPLOYEES SERVING AS JURORS ARE NOT PROHIBITED BY SECTION 2 OF THE ACT OF JUNE 29, 1940; BUT THE $4 PER DIEM DESCRIBED UNDER (2), SUPRA, IS A FORM OF COMPENSATION FOR SERVICES RENDERED OR FOR TIME SPENT IN CONNECTION WITH EACH DAY'S ATTENDANCE IN COURT AND IN GOING TO AND FROM THE SAME, AND, THEREFORE, PAYMENT OF SUCH PER DIEM TO FEDERAL EMPLOYEES SERVING AS JURORS IS CLEARLY PROHIBITED BY SECTION 2 OF THE STATUTE. QUESTION (1) AS PRESENTED BY THE CLERK OF THE COURT IS ANSWERED ACCORDINGLY.

REFERRING TO QUESTION 2, THE PHRASE "EMPLOYEE OF THE UNITED STATES" APPEARING IN THE STATUTE MEANS A REGULAR PERMANENT EMPLOYEE OF THE UNITED STATES EXCLUDING TEMPORARY, SUBSTITUTE, AND "WHEN ACTUALLY EMPLOYED PERSONNEL.' SEE DECISION OF SEPTEMBER 7, 1940, B-12030.