B-13334, NOVEMBER 22, 1940, 20 COMP. GEN. 276

B-13334, NOVEMBER 22, 1940, 20 COMP. GEN. 276

OFFICERS AND EMPLOYEES - FEDERAL JURY SERVICE - PER DIEM ALLOWANCE FOR ATTENDANCE IN COURT AN EMPLOYEE OF THE UNITED STATES WHO IS IN A NONPAY STATUS WHEN CALLED FOR JURY SERVICE IN A FEDERAL COURT MAY BE PAID THE PER DIEM ALLOWANCE FOR EACH DAY'S ATTENDANCE IN COURT AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND FROM COURT AS PROVIDED IN 28 U.S.C. 600B. EVIDENCE OF THE STATUS OF SUCH EMPLOYEES MAY BE IN THE FORM OF A STATEMENT FROM THE ADMINISTRATIVE OFFICE CONCERNED SHOWING THAT THE EMPLOYEE WAS IN A NONPAY STATUS PRIOR TO AND DURING THE PERIOD INVOLVED. AN EMPLOYEE WHO IS NOT ENTITLED TO LEAVE AND MUST EMPLOY A SUBSTITUTE WHILE SERVING AS A JUROR MAY BE PAID THE PER DIEM ALLOWANCE FOR EACH DAY'S ATTENDANCE IN FEDERAL COURT AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND FROM COURT AS PROVIDED IN 28 U.S.C. 600B.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, NOVEMBER 22, 1940:

I HAVE YOUR LETTER OF OCTOBER 30, 1940, AS FOLLOWS:

A FURTHER INTERPRETATION OF THE ACT OF JUNE 29, 1940, PUBLIC, NO. 676 IS DESIRED IN VIEW OF A LETTER DATED OCTOBER 26, 1940, FROM UNITED STATES MARSHALL CHARLES H. COX OF ATLANTA, GEORGIA, READING AS FOLLOWS:

" I WOULD LIKE ADVICE AS TO THE PAYMENT OF GOVERNMENT EMPLOYEE JURORS. MOST OF THESE JURORS ARE EMPLOYED BY THE POST OFFICE DEPARTMENT AND SOME STATE THAT THEY ARE ON LEAVE WITH PAY AND OTHERS ON LEAVE WITHOUT PAY. THE CASE OF A THIRD-CLASS POSTMASTER, I AM INFORMED THAT THEY ARE NOT ENTITLED TO LEAVE AND MUST EMPLOY A SUBSTITUTE TO ACT FOR THEM WHILE IN ATTENDANCE AS A ROR.'

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO THE FOLLOWING:

1. ARE EMPLOYEES OF THE UNITED STATES WHO ARE IN A STATUS OF LEAVE WITHOUT PAY, WHEN CALLED FOR JURY SERVICE, ENTITLED TO THE PER DIEM OF $4.00 FOR EACH DAY'S ATTENDANCE IN COURT AND FOR TIME NECESSARILY OCCUPIED IN GOING TO AND FROM COURT, PROVIDED IN TITLE 28, SECTION 600 (B), OF THE U.S.C. AND IF SO, UPON WHAT EVIDENCE OF THIS STATUS MAY THE MARSHAL MAKE PAYMENT OF SUCH PER DIEM?

2. IF AN EMPLOYEE OF THE GOVERNMENT IS NOT ENTITLED TO LEAVE AND MUST EMPLOY A SUBSTITUTE WHILE SERVING AS A JUROR, IS HE ENTITLED TO THE PER DIEM PROVIDED FOR JURORS IN THE ABOVE SECTION?

THE ACT OF JUNE 29, 1940, 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.

IN DECISION OF SEPTEMBER 11, 1940, B-12134, 20 COMP. GEN. 145, IT WAS HELD:

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.

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 DISTRICT COURT OF THE UNITED STATES FOR 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 HEREINAFTER PROVIDED. ( APR. 26, 1926, C. 183, SEC. 1, 44 STAT. 323; MAY 17, 1932, C. 190, 47 STAT.158; JUNE 25, 1936, C. 804, 49 STAT. 1921.)

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.)

SECTION 1 OF THE ACT OF JUNE 29, 1940, SUPRA, PROVIDES THAT THE COMPENSATION OF "ANY EMPLOYEE OF THE UNITED STATES" SHALL NOT BE DIMINISHED DURING JURY SERVICE AND THAT THE TIME INVOLVED IN SUCH JURY SERVICE SHALL NOT "BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW.' THE PURPOSE OR INTENT OF THE STATUTE IN ITS ENTIRETY 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, IF OTHERWISE IN A PAY STATUS, AND THAT THE PERIOD OF SUCH SERVICE SHALL NOT IN ANY EVENT BE CHARGED AS ANNUAL LEAVE.

IN 10 COMP. GEN. 329, THERE WAS CONSIDERED THE QUESTION OF THE RIGHT OF A FEDERAL EMPLOYEE TO PAYMENT OF WITNESS FEES WHILE ATTENDING COURT AS A WITNESS DURING A PERIOD OF LEAVE WITHOUT PAY, AND IT WAS THERE HELD IN PERTINENT PART AS FOLLOWS:

* * * THE EMPLOYEE WAS NOT IN A DUTY STATUS AT THE TIME THE SUBPOENA TO ATTEND THE COURT TRIAL WAS ISSUED, AND SUCH SUBPOENA DID NOT OPERATE TOPLACE HIM IN A DUTY STATUS. SO FAR AS HIS EXPENSES AS A WITNESS ARE CONCERNED HE WAS IN THE SAME STATUS AS AN EMPLOYEE WHO HAD BEEN SEPARATED FROM THE SERVICE. ACCORDINGLY, HE SHOULD BE PAID THE USUAL WITNESS FEES AND MILEAGE IN ACCORDANCE WITH SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 324 * * * FOR HIS ATTENDANCE AT COURT WHILE IN A NONPAY AND NONDUTY STATUS.

THE HOLDING IN THE DECISION, SUPRA, APPLIES WITH EQUAL FORCE TO FEDERAL EMPLOYEES WHO ARE REQUIRED BY PROPER COURT ORDER TO RENDER SERVICES AS JURORS--- THE AUTHORITY IN THE 1926 ACT FOR PAYMENT OF "PER DIEM AND MILEAGE" TO JURORS BEING IN SUBSTANTIALLY IDENTICAL TERMS WITH THOSE APPLICABLE TO FEDERAL EMPLOYEES SERVING AS WITNESSES. SECTION 2 OF THE ACT OF JUNE 29, 1940, DENYING TO FEDERAL EMPLOYEES PAYMENT OF COMPENSATION FOR JURY SERVICE IS DIRECTED TO FEDERAL EMPLOYEES SPECIFIED IN SECTION 1 OF THE ACT, AND SINCE THE EMPLOYEES REFERRED TO IN SAID SECTION 1 ARE OBVIOUSLY THOSE IN A PAY STATUS, IT IS NOT PERCEIVED THAT SECTION 2 OF SAID ACT HAS ANY APPLICATION TO EMPLOYEES IN A NONPAY STATUS. THAT VIEW FINDS SUPPORT, ALSO, IN THE PROVISION OF SECTION 3 OF SAID ACT, IN THAT THERE COULD BE NO CREDITING OF ANY AMOUNT "AGAINST THE AMOUNT OF COMPENSATION PAYABLE BY THE UNITED STATES" TO ANY EMPLOYEE SPECIFIED IN SECTION 1 "FOR SUCH PERIOD" (QUOTATIONS BEING FROM SECTION 3 OF THE ACT) IF THE EMPLOYEE BE NOT ENTITLED TO COMPENSATION BECAUSE OF HIS BEING IN A NONPAY STATUS AT THE TIME HE WAS CALLED TO RENDER JURY SERVICE.

REFERRING TO QUESTION 1, THEREFORE, AN "EMPLOYEE OF THE UNITED STATES" WHO IS IN A STATUS OF LEAVE WITHOUT PAY, THAT, IS A NONPAY STATUS, WHEN CALLED FOR JURY SERVICE MAY BE PAID THE PER DIEM OF $4 FOR EACH DAY'S ATTENDANCE IN COURT AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND FROM COURT, AS PROVIDED IN SECTION 6000B OF TITLE 28, U.S.C., SUPRA. EVIDENCE OF THE STATUS OF SUCH EMPLOYEES MAY BE IN THE FORM OF A STATEMENT FROM THE ADMINISTRATIVE OFFICE CONCERNED SHOWING THAT THE EMPLOYEE WAS IN A NONPAY STATUS PRIOR TO AND DURING THE PERIOD INVOLVED.

REGARDING QUESTION 2, AN EMPLOYEE OF THE CLASS REFERRED TO WOULD NOT APPEAR TO BE AN "EMPLOYEE OF THE UNITED STATES" WITHIN THE MEANING OF THE JURY LEAVE ACT (COMPARE THAT PART OF THE DECISION OF SEPTEMBER 11, 1940, B -12134, HEREINBEFORE QUOTED), AND WHILE SERVING AS A JUROR SUCH EMPLOYEE WOULD OCCUPY A STATUS SIMILAR TO A JUROR NOT CONNECTED WITH THE GOVERNMENT SERVICE. ACCORDINGLY, AND IN THE LIGHT, ALSO, OF THE DISCUSSION UNDER QUESTION 1 ABOVE, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.