B-137391, OCTOBER 14, 1958, 38 COMP. GEN. 307

B-137391: Oct 14, 1958

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CIVILIAN PERSONNEL - LEAVES OF ABSENCE - COURT - JURY DUTY - WITNESS SERVICE - TEMPORARY EMPLOYEES FULL-TIME TEMPORARY EMPLOYEES (OTHER THAN TEMPORARY INDEFINITE EMPLOYEES) WHO ARE CALLED TO JURY DUTY ARE NOT ENTITLED TO COURT LEAVE OR TO COMPENSATION FOR JURY SERVICE PROVIDED UNDER 5 U.S.C. 3ON FOR REGULAR PERMANENT EMPLOYEES. TEMPORARY EMPLOYEES WHO ARE CALLED AS WITNESSES FOR THE UNITED STATES. ARE ENTITLED TO REGULAR COMPENSATION FOR THE PERIODS OF WITNESS SERVICE. THE DISTINCTION BETWEEN JURY SERVICE AND WITNESS SERVICE BEING THAT THE LATTER IS OF COMPARATIVELY SHORT DURATION AND WOULD NOT DEFEAT THE PURPOSE OF THE TEMPORARY EMPLOYMENT NOR DISSIPATE THE FUNDS AVAILABLE FOR SUCH EMPLOYMENT AS PROLONGED PERIODS OF JURY DUTY WOULD.

B-137391, OCTOBER 14, 1958, 38 COMP. GEN. 307

CIVILIAN PERSONNEL - LEAVES OF ABSENCE - COURT - JURY DUTY - WITNESS SERVICE - TEMPORARY EMPLOYEES FULL-TIME TEMPORARY EMPLOYEES (OTHER THAN TEMPORARY INDEFINITE EMPLOYEES) WHO ARE CALLED TO JURY DUTY ARE NOT ENTITLED TO COURT LEAVE OR TO COMPENSATION FOR JURY SERVICE PROVIDED UNDER 5 U.S.C. 3ON FOR REGULAR PERMANENT EMPLOYEES; HOWEVER, TEMPORARY EMPLOYEES WHO ARE CALLED AS WITNESSES FOR THE UNITED STATES, IN EITHER THEIR OFFICIAL CAPACITY OR OTHERWISE, ARE ENTITLED TO REGULAR COMPENSATION FOR THE PERIODS OF WITNESS SERVICE; THE DISTINCTION BETWEEN JURY SERVICE AND WITNESS SERVICE BEING THAT THE LATTER IS OF COMPARATIVELY SHORT DURATION AND WOULD NOT DEFEAT THE PURPOSE OF THE TEMPORARY EMPLOYMENT NOR DISSIPATE THE FUNDS AVAILABLE FOR SUCH EMPLOYMENT AS PROLONGED PERIODS OF JURY DUTY WOULD.

TO THE SECRETARY OF COMMERCE, OCTOBER 14, 1958:

ON SEPTEMBER 15, 1958, THE ASSISTANT SECRETARY REQUESTED OUR ADVICE WHETHER, IN VIEW OF CERTAIN DEVELOPMENTS, OUR PRIOR DECISIONS HOLDING THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO COURT LEAVE ON ACCOUNT OF JURY AND WITNESS SERVICE MAY BE MODIFIED.

WE SHALL CONSIDER FIRST THE MATTER OF LEAVE FOR JURY SERVICE. SUCH LEAVE IS PROVIDED FOR BY SECTION 1 OF THE ACT OF JUNE 29, 1940, 54 STAT. 689, 5 U.S.C. 30N, WHICH IN TERMS APPLIES TO "ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA.' WE HELD IN A DECISION DATED SEPTEMBER 11, 1940, 20 COMP. GEN. 145, 147, CITING A DECISION OF SEPTEMBER 7, 1940 (20 COMP. GEN. 133), THAT THE PHRASE "EMPLOYEE OF THE UNITED STATES" AS USED IN THE THEN NEWLY ENACTED JURY SERVICE STATUTE MEANT A REGULAR PERMANENT EMPLOYEE EXCLUDING TEMPORARY, SUBSTITUTE, AND "WHEN ACTUALLY EMPLOYED" PERSONNEL. EXCEPT AS TO TEMPORARY INDEFINITE EMPLOYEES (27 COMP. GEN. 300), WE CONSISTENTLY HAVE ADHERED TO THAT CONSTRUCTION. DECISION OF MAY 11, 1956, B-127804, TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, A COPY OF WHICH IS ENCLOSED; DECISION OF AUGUST 9, 1956, B-128761, TO YOU.

GENERALLY SPEAKING, TEMPORARY APPOINTMENTS (OTHER THAN TEMPORARY INDEFINITE) ARE AUTHORIZED FOR NOT TO EXCEED ONE YEAR FOR "JOB EMPLOYMENT" TO FULFILL A PARTICULAR NEED NOT EXPECTED TO CONTINUE INDEFINITELY ( CIVIL SERVICE REGULATIONS, 5 CFR 2.301 (C) AND 2.302 (B) (, AND FOR NOT TO EXCEED ONE MONTH IN EMERGENCIES (5 CFR 2.303). IT IS PATENT THAT TO DIVERT THE SERVICES OF A TEMPORARY EMPLOYEE FOR A SUBSTANTIAL PERIOD FROM THE DUTIES FOR WHICH EMPLOYED WHILE CONTINUING TO PAY HIS SALARY WOULD TEND TO DEFEAT, IF NOT ENTIRELY FRUSTRATE, THE PURPOSES OF THE EMPLOYMENT AND TO DISSIPATE THE FUNDS AVAILABLE FOR THE PURPOSE. JURY SERVICE USUALLY IS OF PROLONGED DURATION. FOR EXAMPLE, HERE IN THE DISTRICT OF COLUMBIA PETIT JURY SERVICE IS FOR ONE MONTH AND GRAND JURY SERVICE IS FOR TWO MONTHS, SUBJECT TO EXTENSION UNDER CERTAIN CIRCUMSTANCES. A FAMILIAR RULE OF STATUTORY CONSTRUCTION IS THAT THE OPERATION OF A STATUTE MUST BE RESTRICTED WITHIN NARROWER LIMITS THAN THE WORDS IMPORT WHEN THE LITERAL MEANING EMBRACES CASES NOT INTENDED BY THE LEGISLATIVE BODY. ABSURD, UNREASONABLE OR ILLOGICAL RESULTS ARE PRESUMED NOT TO HAVE BEEN INTENDED. CHURCH OF THE HOLY TRINITY V. UNITED STATES, 143 U.S. 457; FORT SMITH AND WESTERN R.R. COMPANY V. MILLS, 253 U.S. 206; UNITED STATES V. AMERICAN TRUCKING ASSOCIATION, 310 U.S. 534. OUR RESTRICTIVE CONSTRUCTION OF THE JURY SERVICE STATUTE IS FOUNDED IN THAT RULE UPON THE BASIS THAT INCLUSION OF TEMPORARY EMPLOYEES WIHTIN THE STATUTE WOULD BE UNREASONABLE AS DEMONSTRATED IN OUR DISCUSSION ABOVE.

THE ASSISTANT SECRETARY SUGGESTS THAT TEMPORARY EMPLOYEES NOW MAY BE ELIGIBLE FOR COURT LEAVE IN VIEW OF THE CHANGES IN THE LEAVE RIGHTS OF SUCH EMPLOYEES AND THE INCLUSION OF CERTAIN TEMPORARY PER DIEM, PER HOUR, AND PIECE-WORK EMPLOYEES WITHIN THE DEFINITION OF "REGULAR EMPLOYEES" FOR PURPOSES OF PAY WHEN RELIEVED OR PREVENTED FROM WORKING BY THE OCCURRENCE OF A HOLIDAY AND WHEN RELIEVED FROM DUTY BY ADMINISTRATIVE ORDER (5 CFR 30.903 (B); 34 COMP. GEN. 235).

WE PREVIOUSLY HAVE CONSIDERED THE EFFECT OF THE CHANGE IN THE LEAVE RIGHTS OF TEMPORARY EMPLOYEES ON THE RIGHT TO COURT LEAVE FOR JURY SERVICE AND AS HEREINBEFORE INDICATED WE HAVE REAFFIRMED OUR PRIOR DECISIONS. 127804, SUPRA. WE DO NOT FEEL WARRANTED AT THIS TIME IN TAKING A DIFFERENT VIEW ON ACCOUNT OF SUCH CHANGE.

NOR DO WE BELIEVE THAT THE PRESENT STATUS OF A CERTAIN CLASS OF TEMPORARY EMPLOYEES FOR PURPOSES OF PAY FOR HOLIDAYS AND WHEN RELIEVED FROM DUTY BY ADMINISTRATIVE ORDER WARRANTS A CHANGE OF VIEW. THE ABSENCES ON ACCOUNT OF HOLIDAYS OR ADMINISTRATIVE ORDER ARE FOR BRIEF PERIODS DURING WHICH, IN THE GREAT MAJORITY OF CASES, THE WORK WOULD NOT BE PROGRESSING IN ANY EVENT BECAUSE OF THE CLOSING OF THE ESTABLISHMENT. FURTHERMORE, TEMPORARY EMPLOYEES PAID ON A PER ANNUM BASIS LONG HAVE BEEN CONSIDERED AS ENTITLED TO PAY FOR ABSENCES ON ACCOUNT OF HOLIDAYS (31 COMP. GEN. 565; 32 ID. 304), AND THAT FACT HAS NOT BEEN CONSIDERED AS AFFECTING THE MATTER HERE IN QUESTION.

REFERRING TO THE ASSISTANT SECRETARY'S QUESTION CONCERNING COMPENSATION FROM THE COURT, WE HELD IN THE DECISION OF MAY 11, 1956, TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF UNITED STATES COURTS, SUPRA, THAT TEMPORARY EMPLOYEES NOT ENTITLED TO COURT LEAVE AS SUCH MIGHT BE PAID JURY FEES.

CONCERNING THE MATTER OF COURT LEAVE FOR WITNESS SERVICE, WE SHOULD POINT OUT THAT THERE NOW IS NO LAW SPECIFICALLY DEALING WITH COMPENSATION OF FEDERAL EMPLOYEES TESTIFYING FOR THE UNITED STATES. SECTION 1823 (B) OF THE ACT OF JUNE 25, 1948 (THE JUDICIAL CODE), AS AMENDED, 28 U.S.C. 1823 (B), QUOTED IN THE ASSISTANT SECRETARY'S LETTER, RELATES TO FEDERAL EMPLOYEES TESTIFYING IN CASES IN WHICH THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS A PARTY AND TO EMPLOYEES OF SUCH GOVERNMENT TESTIFYING IN CASES IN WHICH THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS A PARTY. SECTION 1823 (A), 28 U.S.C. 1823 (A), PROVIDES THE BASIS FOR PAYMENT OF THE TRAVELING EXPENSES OF FEDERAL EMPLOYEES SUMMONED AS WITNESSES FOR THE UNITED STATES. CERTAIN LANGUAGE RELATING TO COMPENSATION WHICH APPEARED IN SECTION 850 OF THE REVISED STATUTES, AS AMENDED, 28 U.S.C. (1946 USED.) 604, UPON WHICH SAID SECTON 1823 (A) IS BASED, WAS OMITTED IN THE RECODIFICATION. HOWEVER, OUR VIEW IS THAT IT WAS NOT THE LEGISLATIVE INTENT BY THE OMISSION TO DISCONTINUE THE PRACTICE OF PAYING REGULAR SALARY DURING PERIODS OF WITNESS SERVICE, PARTICULARLY SINCE THE EXPRESS AUTHORITY CONCERNING UNITED STATES' DISTRICT OF COLUMBIA CASES CONTAINED IN THE ACT OF OCTOBER 14, 1941, 55 STAT. 737, WAS CONTINUED IN SECTION 1823 (B); RATHER, THE EFFECT OF THE OMISSION WAS TO REMOVE THE BAR OF THE FORMER LAW AS CONCERNED COMPENSATION IN ADDITION TO REGULAR SALARY IN APPROPRIATE CASES. B-136552, AUGUST 22, 1958, 38 COMP. GEN. 142.

AS COMPARED WITH JURY SERVICE, WITNESS SERVICE IS OF COMPARATIVELY SHORT DURATION--- USUALLY A DAY OR SO; HENCE, IT WOULD NOT HAVE THE SAME TENDENCY TO DEFEAT THE PURPOSE OF TEMPORARY EMPLOYMENT AND TO DISSIPATE THE FUNDS AVAILABLE FOR SUCH EMPLOYMENT. THUS, THE RULE OF STATUTORY CONSTRUCTION INVOKED TO RESTRICT THE SCOPE OF THE JURY SERVICE STATUTE IS NOT FOR APPLICATION IN WITNESS SERVICE CASES. CF. 21 COMP. GEN. 886 AND 22 ID. 743, WHEREIN CERTAIN OF THE FORMER STATUTORY PROVISIONS WERE STRICTLY CONSTRUED. THEREFORE, WE SHALL INTERPOSE NO OBJECTION TO THE PAYMENT OF THE SALARIES OF FULL-TIME TEMPORARY EMPLOYEES, AS DISTINGUISHED FROM SUBSTITUTE AND "WHEN ACTUALLY EMPLOYED" EMPLOYEES (4 COMP. GEN. 748), DURING PERIODS OF NECESSARY ABSENCE WHILE SERVING AS WITNESS FOR THE UNITED STATES. WHAT WE HAVE JUST SAID RELATES TO TESTIMONY IN OTHER THAN THE EMPLOYEE'S OFFICIAL CAPACITY. IF THE TESTIMONY IS IN HIS OFFICIAL CAPACITY, HE IS ENTITLED TO COMPENSATION WITHOUT REGARD TO ENTITLEMENT TO "COURT LEAVE.' 9 COMP. GEN. 168; 24 ID. 225. IN THE SPECIFIC CASE PRESENTED- - THAT OF AN EMPLOYEE SERVING UNDER A TEMPORARY APPOINTMENT LIMITED TO ONE YEAR WHO WAS CALLED AS A WITNESS FOR THE UNITED STATES IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA--- THE EMPLOYEE MAY BE PAID HER REGULAR SALARY FOR THE PERIOD OF WITNESS SERVICE. OF COURSE, NO WITNESS FEES IN ADDITION TO SALARY ARE PAYABLE.