B-129423, NOVEMBER 6, 1956, 36 COMP. GEN. 378

B-129423: Nov 6, 1956

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FEDERAL EMPLOYEES - PART-TIME JURY SERVICE - COURT LEAVE - JURY FEES A PART-TIME PERMANENT FEDERAL EMPLOYEE WHO IS CALLED FOR JURY SERVICE IN A UNITED STATES COURT MAY RECEIVE THE COMPENSATION OF HIS POSITION. FOR ANY HOURS OF JURY SERVICE WHICH DO NOT CONFLICT WITH HIS REGULAR TOUR OF DUTY AND FOR WHICH HE IS NOT ENTITLED TO COURT LEAVE. WE UNDERSTAND THAT YOUR AGENCY HAS MANY PERMANENT EMPLOYEES WHO FORMERLY WORKED FULL-TIME BUT WHO NOW HAVE BEEN REQUIRED BY CHANGED CONDITIONS AND CIRCUMSTANCES TO WORK ONLY PART-TIME WITH A REGULAR TOUR OF DUTY. THEY OTHERWISE ARE IN A NONPAY STATUS WHEN THEY ARE NOT IN PURSUIT OF THEIR SCHEDULED PART-TIME EMPLOYMENT. YOU ASK THE FOLLOWING QUESTIONS: (1) MAY SUCH AN EMPLOYEE BE COMPENSATED BY THE SELECTIVE SERVICE SYSTEM FOR THE PERIOD THAT HE IS REQUIRED TO BE ABSENT FROM HIS SELECTIVE SERVICE POSITION BY REASON OF SUCH JURY SERVICE? (2) MAY SUCH AN EMPLOYEE.

B-129423, NOVEMBER 6, 1956, 36 COMP. GEN. 378

FEDERAL EMPLOYEES - PART-TIME JURY SERVICE - COURT LEAVE - JURY FEES A PART-TIME PERMANENT FEDERAL EMPLOYEE WHO IS CALLED FOR JURY SERVICE IN A UNITED STATES COURT MAY RECEIVE THE COMPENSATION OF HIS POSITION, AND FOR ANY HOURS OF JURY SERVICE WHICH DO NOT CONFLICT WITH HIS REGULAR TOUR OF DUTY AND FOR WHICH HE IS NOT ENTITLED TO COURT LEAVE, THE EMPLOYEE MAY RECEIVE THE JURY FEE.

TO LIEUTENANT GENERAL LEWIS B. HERSHEY, SELECTIVE SERVICE SYSTEM, NOVEMBER 6, 1956:

YOUR LETTER OF OCTOBER 3, 1956, REQUESTS OUR DECISION CONCERNING THE APPLICATION OF THE ACT OF JUNE 29, 1940, 54 STAT. 689, TO A PART-TIME PERMANENT EMPLOYEE WHO HAS A REGULAR TOUR OF DUTY AND WHO HAS BEEN CALLED FOR JURY SERVICE IN A COURT OF THE UNITED STATES.

WE UNDERSTAND THAT YOUR AGENCY HAS MANY PERMANENT EMPLOYEES WHO FORMERLY WORKED FULL-TIME BUT WHO NOW HAVE BEEN REQUIRED BY CHANGED CONDITIONS AND CIRCUMSTANCES TO WORK ONLY PART-TIME WITH A REGULAR TOUR OF DUTY. THUS, THEY OTHERWISE ARE IN A NONPAY STATUS WHEN THEY ARE NOT IN PURSUIT OF THEIR SCHEDULED PART-TIME EMPLOYMENT. BECAUSE OF THEIR BEING CALLED FOR JURY SERVICE IN A COURT OF THE UNITED STATES DURING ALL, OR A PART, OF THEIR SCHEDULED TOUR OF DUTY, OR WHOLLY OUTSIDE THEIR SCHEDULED TOUR OF DUTY, YOU ASK THE FOLLOWING QUESTIONS:

(1) MAY SUCH AN EMPLOYEE BE COMPENSATED BY THE SELECTIVE SERVICE SYSTEM FOR THE PERIOD THAT HE IS REQUIRED TO BE ABSENT FROM HIS SELECTIVE SERVICE POSITION BY REASON OF SUCH JURY SERVICE?

(2) MAY SUCH AN EMPLOYEE, WHOSE HOURS OF JURY SERVICE DO NOT CONFLICT WITH HIS HOURS OF EMPLOYMENT BY THE SELECTIVE SERVICE SYSTEM, RECEIVE THE USUAL FEE FOR JURY SERVICE?

(3) IF THERE IS A PARTIAL CONFLICT BETWEEN THE USUAL HOURS OF EMPLOYMENT OF SUCH AN EMPLOYEE AND THE HOURS OF JURY SERVICE, MAY THE EMPLOYEE COLLECT OR RETAIN THE JURY FEE ON A PRO RATA BASIS TO THE EXTENT OF SUCH CONFLICT? THE REFERRED-TO ACT OF JUNE 29, 1940, READS 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.

BOTH SECTIONS 2, 5 U.S.C. 300, AND 3, 5 U.S.C. 30P, ARE, BY THEIR VERY TERMS, APPLICABLE TO "ANY EMPLOYEE SPECIFIED IN SECTION 1.' THE EMPLOYEE SO SPECIFIED IN SECTION 1, 5 U.S.C. 30N, IS "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.' SECTION 1 PROHIBITS ANY DIMINUTION OF SUCH EMPLOYEE'S COMPENSATION "BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 3.' ACCORDINGLY, SO FAR AS JURY SERVICE IN EITHER FEDERAL OR STATE COURTS INVOLVES A PERIOD DURING WHICH THE EMPLOYEE IS IN A NONPAY STATUS--- THAT IS, WHERE SUCH SERVICE DOES NOT INVOLVE AN EMPLOYEE'S BEING AWAY FROM A PERIOD OF SCHEDULED TOUR OF DUTY WHEN HE WOULD BE IN A PAY STATUS--- THE ACT ABOVE QUOTED HAS NO APPLICATION. SEE 27 COMP. GEN. 83. ACCORDINGLY, QUESTIONS (1) AND (2) ARE ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTION (3), WE SEE NO PROPER LEGAL BASIS UNDER SECTION 2 OF THE ABOVE-QUOTED STATUTE FOR PRORATING ANY JURY FEE IN THE CASE OF JURY SERVICE BY "ANY EMPLOYEE SPECIFIED IN SECTION 1" WHERE THE JURY SERVICE IS "IN ANY COURT OF THE UNITED STATES"--- A SITUATION TO WHICH YOUR THIRD QUESTION IS ADDRESSED. UNLIKE SECTION 3 OF THE STATUTE--- PROVIDING FOR SOME MEASURE OF "REIMBURSEMENT" TO THE UNITED STATES FOR JURY SERVICE RENDERED IN STATE COURTS WHERE THE COMPENSATION AND ANNUAL LEAVE ACCOUNT OF THE FEDERAL EMPLOYEE CONTINUES WITHOUT DIMINUTION DURING THE PERIOD OF ALL OR A PART OF HIS SCHEDULED TOUR OF DUTY--- SECTION 2 IS EXPLICIT IN ITS MANDATE THAT SUCH EMPLOYEE "SHALL NOT RECEIVE ANY COMPENSATION FOR SUCH SERVICE.' THAT SECTION OF THE STATUTE HAS CONSISTENTLY BEEN CONSTRUED BY OUR OFFICE AS PROHIBITING PAYMENT TO AN EMPLOYEE OF THE UNITED STATES FOR JURY DUTY FOR THOSE DAYS ON WHICH HE MAY PERFORM JURY SERVICE IN THE UNITED STATES COURTS WHILE IN A PAY STATUS IN HIS CIVILIAN POSITION (29 COMP. GEN. 391), AND WHETHER SUCH PAY STATUS INVOLVES ONLY A PART OF THE PERIOD OF JURY SERVICE IS IMMATERIAL. TO PROVIDE FOR PRORATING UNDER SECTION 2 OF THE STATUTE WOULD BE READING INTO THE STATUTE A PROVISION WHICH IS NOT THERE. WE MUST CONCLUDE, THEREFORE, THAT QUESTION 3 IS FOR ANSWERING IN THE NEGATIVE.