B-127804, MAY 11, 1956

B-127804: May 11, 1956

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ERICKSEN IS STATED TO BE SERVING UNDER A TEMPORARY LIMITED APPOINTMENT IN THE DEPARTMENT OF AGRICULTURE AND MRS. WE HAVE ASCERTAINED INFORMALLY THAT MRS. PARKER'S APPOINTMENT ALSO IS A TEMPORARY LIMITED APPOINTMENT. 5 U.S.C. 30N AND 30O. GEN. 133 WE HELD THAT TEMPORARY AND SUBSTITUTE EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY FOR JURY DUTY UNDER THE ACT OF JUNE 29. THAT HOLDING WAS PREDICATED PRINCIPALLY UPON THE FACT THAT THE CONGRESS HAD RECOGNIZED TEMPORARY INDEFINITE EMPLOYEES AS ENTITLED TO MILITARY LEAVE BUT REFUSED TO EXTEND SUCH LEAVE TO PURELY TEMPORARY EMPLOYEES. AT THE TIME OF OUR RULINGS TEMPORARY EMPLOYEES ALSO WERE ENTITLED TO ANNUAL AND SICK LEAVE BUT ON A DIFFERENT BASIS FROM THAT APPLICABLE TO PERMANENT EMPLOYEES.

B-127804, MAY 11, 1956

HONORABLE HENRY P. CHANDLER, DIRECTOR, ADMINISTRATIVE OFFICE OF UNITED STATES COURTS:

ON MAY 2, 1956, THE ASSISTANT DIRECTOR REQUESTED OUR DECISION WHETHER PAYMENT MAY BE MADE ON THE TWO VOUCHERS THEREWITH ENCLOSED, ONE TO MRS. DOROTHY C. ERICKSEN AND THE OTHER TO MRS. INEZ. G. PARKER FOR SERVICES AS JURORS. MRS. ERICKSEN IS STATED TO BE SERVING UNDER A TEMPORARY LIMITED APPOINTMENT IN THE DEPARTMENT OF AGRICULTURE AND MRS. PARKER UNDER A TEMPORARY APPOINTMENT WITH THE BUREAU OF THE CENSUS, BUT WE HAVE ASCERTAINED INFORMALLY THAT MRS. PARKER'S APPOINTMENT ALSO IS A TEMPORARY LIMITED APPOINTMENT. 5 U.S.C. 30N AND 30O, PROVIDE AS FOLLOWS:

"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 30P OF THIS TITLE, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW. JUNE 29, 1940, C. 446, SEC. 1, 54 STAT. 689.'

"ANY EMPLOYEE SPECIFIED IN SECTION 30N OF THIS TITLE WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY COURT OF THE UNITED STATES SHALL NOT RECEIVE ANY COMPENSATION FOR SUCH SERVICE. JUNE 29, 1940, C. 446, SEC. 2, 54 STAT. 689.'

IN 20 COMP. GEN. 133 WE HELD THAT TEMPORARY AND SUBSTITUTE EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY FOR JURY DUTY UNDER THE ACT OF JUNE 29, 1940, 54 STAT. 689, CODIFIED AS ABOVE QUOTED. SEE ALSO 20 COMP. GEN. 145. IN 27 COMP. GEN. 330 WE HELD THAT COURT LEAVE MAY BE GRANTED TO AN EMPLOYEE SERVING UNDER A TEMPORARY INDEFINITE APPOINTMENT. THAT HOLDING WAS PREDICATED PRINCIPALLY UPON THE FACT THAT THE CONGRESS HAD RECOGNIZED TEMPORARY INDEFINITE EMPLOYEES AS ENTITLED TO MILITARY LEAVE BUT REFUSED TO EXTEND SUCH LEAVE TO PURELY TEMPORARY EMPLOYEES. SEE ACT OF JULY 1, 1947, 61 STAT. 239. THE FACT THAT THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, HAS EXTENDED TO TEMPORARY EMPLOYEES THE SAME ANNUAL AND SICK LEAVE RIGHTS AS PERMANENT EMPLOYEES--- A FACTOR SUGGESTED IN THE ASSISTANT DIRECTOR'S LETTER AS POSSIBLY AFFORDING BASIS FOR MODIFYING OUR PRIOR HOLDINGS IN THIS CLASS OF CASES--- DOES NOT, IN OUR VIEW, CONSTITUTE ANY LEGAL BASIS FOR ANY CHANGE IN SUCH RULING. AT THE TIME OF OUR RULINGS TEMPORARY EMPLOYEES ALSO WERE ENTITLED TO ANNUAL AND SICK LEAVE BUT ON A DIFFERENT BASIS FROM THAT APPLICABLE TO PERMANENT EMPLOYEES. COMPARE 28 COMP. GEN. 108.

AS THE TWO EMPLOYEES IN QUESTION HELD TEMPORARY LIMITED APPOINTMENT AT THE TIME THEY RENDERED JURY SERVICE THEY ARE NOT ENTITLED TO THE BENEFITS OF 5 U.S.C. 30N AND 30O, AND THEIR ABSENCES FROM THEIR RESPECTIVE EMPLOYMENTS FOR JURY DUTY MUST BE CHARGED EITHER TO ANNUAL LEAVE OR TO LEAVE WITHOUT PAY. ACCORDINGLY, AS THEY ARE NOT ENTITLED TO COURT LEAVE, AS SUCH, PAYMENT ON THE TWO VOUCHERS FOR JURY FEES APPEARS PROPER.