B-128761, AUG. 9, 1956

B-128761: Aug 9, 1956

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THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION REQUESTED OUR DECISIONS WHETHER TWO CLASSES OF EMPLOYEES THEREIN DESCRIBED ARE ENTITLED TO JURY OR MILITARY LEAVE. IN SOME CASES THE EMPLOYEES ARE APPOINTED FOR AN INDEFINITE PERIOD LONGER THAN ONE YEAR BUT NOT TO EXCEED A SPECIFIC DATE UPON WHICH THE PARTICULAR CENSUS MUST BE COMPLETED. THE EMPLOYEES ARE GIVEN TEMPORARY APPOINTMENTS FOR NOT TO EXCEED ONE YEAR BUT WHICH ARE EXTENDED FROM TIME TO TIME FOR ADDITIONAL ONE-YEAR PERIODS. EMPLOYEES GIVEN TEMPORARY APPOINTMENTS LIMITED TO ONE YEAR OR LESS ARE NOT ENTITLED EITHER TO COURT OR MILITARY LEAVE. 20 COMP. WE HAVE GIVEN CAREFUL CONSIDERATION TO THE ARGUMENTS ADVANCED IN THE SUBMISSION THAT COURT AND MILITARY LEAVE SHOULD BE GRANTED TO ALL TEMPORARY EMPLOYEES.

B-128761, AUG. 9, 1956

TO THE SECRETARY OF COMMERCE:

ON JULY 25, 1956, THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION REQUESTED OUR DECISIONS WHETHER TWO CLASSES OF EMPLOYEES THEREIN DESCRIBED ARE ENTITLED TO JURY OR MILITARY LEAVE.

IT APPEARS THAT THE BUREAU OF CENSUS IN CONDUCTING VARIOUS LARGE SCALE CENSUSES HAS FOUND IT NECESSARY TO MAKE APPOINTMENTS ON EITHER OF TWO BASES. IN SOME CASES THE EMPLOYEES ARE APPOINTED FOR AN INDEFINITE PERIOD LONGER THAN ONE YEAR BUT NOT TO EXCEED A SPECIFIC DATE UPON WHICH THE PARTICULAR CENSUS MUST BE COMPLETED. IN OTHERS, THE EMPLOYEES ARE GIVEN TEMPORARY APPOINTMENTS FOR NOT TO EXCEED ONE YEAR BUT WHICH ARE EXTENDED FROM TIME TO TIME FOR ADDITIONAL ONE-YEAR PERIODS.

SECTION 1 OF THE ACT OF JUNE 29, 1940, 54 STAT. 689, 5 U.S.C. 30N PROVIDES AS FOLLOWS (QUOTING FROM THE CODE):

"THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES OR 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. * * *"

IN 27 COMP. GEN. 300, WE HELD, QUOTING FROM THE SYLLABUS:

"A PERSON APPOINTED UNDER CIVIL SERVICE REGULATIONS AS A TEMPORARY INDEFINITE EMPLOYEE FOR NOT TO EXCEED 30 DAYS AFTER THE RECEIPT OF A CERTIFICATE OF ELIGIBLES, WHO MAY CONTINUE TO SERVE FOR PERIODS EXTENDING BEYOND THE USUAL TEMPORARY EMPLOYMENT OF SIX MONTHS OR LESS, MAY BE GRANTED COURT LEAVE OF ABSENCE WITH PAY UNDER THE PROVISIONS OF SECTION 30.204 OF THE ANNUAL AND SICK LEAVE REGULATIONS.'

SECTION 4 OF THE ACT OF JULY 1, 1947, 61 STAT. 239 AMENDS VARIOUS PREVIOUS LAWS RELATING TO MILITARY LEAVE, AS FOLLOWS:

"THE WORDS "OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA" AS USED IN THE THIRD PARAGRAPH, SUBHEADING "ORDNANCE STORES AND EQUIPMENT FOR RESERVE OFFICERS' TRAINING CORPS," OF THE ACT OF MAY 12, 1917 (40 STAT. 72; 10 U.S.C. ANNOTATED 371), AS NOW OR HEREAFTER AMENDED, AS USED IN THAT PART OF SECTION 80 OF THE ACT OF JUNE 3, 1916 (39 STAT. 203; 32 U.S.C. 75), AS NOW OR HEREAFTER AMENDED, WHICH PRECEDES THE PROVISO, AND AS USED IN THE FIRST PROVISO OF SECTION 9 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1177; 34 U.S.C. ANNOTATED 853G), AS NOW OR HEREAFTER AMENDED, SHALL BE CONSTRUED TO MEAN ALL OFFICERS OR EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATIONS OR TERMINOLOGY PECULIAR TO THE FEDERAL CIVIL SERVICE SYSTEM.'

THE EMPLOYEES GIVEN INDEFINITE APPOINTMENTS NOT LIMITED TO ONE YEAR MAY BE CONSIDERED AS TEMPORARY INDEFINITE EMPLOYEES AND AS SUCH, WOULD BE ENTITLED TO JURY OR MILITARY LEAVE WITHIN THE PURVIEW OF THE ABOVE STATUTES; BUT EMPLOYEES GIVEN TEMPORARY APPOINTMENTS LIMITED TO ONE YEAR OR LESS ARE NOT ENTITLED EITHER TO COURT OR MILITARY LEAVE. 20 COMP. GEN. 145; 35 COMP. GEN. 5.

WE HAVE GIVEN CAREFUL CONSIDERATION TO THE ARGUMENTS ADVANCED IN THE SUBMISSION THAT COURT AND MILITARY LEAVE SHOULD BE GRANTED TO ALL TEMPORARY EMPLOYEES. THAT MATTER WAS CONSIDERED BY THE CONGRESS IN THE ABOVE AMENDMENT OF THE MILITARY LEAVE STATUTES AND THE CONGRESS SPECIFICALLY RESTRICTED THE AMENDMENT TO TEMPORARY INDEFINITE EMPLOYEES. ACCORDINGLY, WE DO NOT FEEL WARRANTED AT THIS TIME IN EXTENDING THE BENEFITS OF COURT LEAVE OR MILITARY LEAVE TO TEMPORARY EMPLOYEES APPOINTED FOR PERIODS OF ONE YEAR OR LESS.