B-215528, JAN 22, 1985, 64 COMP.GEN. 200

B-215528, JAN 22, 1985, 64 COMP.GEN. 200

LEAVES OF ABSENCE - COURT - WITNESS SEVEN ADMINISTRATIVE LAW JUDGES (ALJS) SEEK COURT LEAVE FOR SERVICE AS WITNESSES FOR PLAINTIFF IN ASSN. OF ADMINISTRATIVE LAW JUDGES, INC. V. HECKLER, CIVIL ACTION NO. 83-0124 (D.D.C.). THE SUIT WAS BROUGHT BY THE PLAINTIFF ASSOCIATION TO CHALLENGE CERTAIN PRACTICES OF THE SOCIAL SECURITY ADMINISTRATION IN MANAGEMENT OF ALJS AND THEIR CASE LOADS. THE ALJS ATTENDED THE TRIAL SUBJECT TO COURT ISSUED SUBPOENAS AND EACH TESTIFIED FOR THE PLAINTIFF. THEY ARE ENTITLED TO COURT LEAVE UNDER 5 U.S.C. 6322(A)(2) (1982) FOR NECESSARY TRAVELTIME, TIME SPENT TESTIFYING, AND TIME WAITING TO TESTIFY. LEAVES OF ABSENCE - COURT - WITNESS SEVEN ADMINISTRATIVE LAW JUDGES (ALJS) SEEK COURT LEAVE FOR SERVICE AS WITNESSES FOR PLAINTIFF IN ASSN. OF ADMINISTRATIVE LAW JUDGES, INC. V. HECKLER, CIVIL ACTION NO. 83-0124 (D.D.C.). ALTHOUGH EACH JUDGE IS A MEMBER OF THE ASSOCIATION, NONE OF THEM IS AN INDIVIDUAL PLAINTIFF NOR IS THE LAWSUIT MAINTAINED AS A CLASS ACTION. THE JUDGES ARE NOT PRECLUDED FROM COURT LEAVE UNDER OUR DECISIONS HOLDING THAT SUCH LEAVE IS NOT AVAILABLE TO AN EMPLOYEE WHO IS A PARTY TO THE LAWSUIT.

MATTER OF: ADMINISTRATIVE LAW JUDGES-- COURT LEAVE, JANUARY 22, 1985:

THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (AGENCY) AND THE ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, INC. (ASSOCIATION) HAVE JOINTLY REQUESTED AN OPINION OF THE COMPTROLLER GENERAL REGARDING COURT LEAVE UNDER 5 U.S.C. SEC. 6322 FOR SEVEN ADMINISTRATIVE LAW JUDGES (ALJS) WHO WERE WITNESSES FOR THE PLAINTIFF IN THE MATTER OF ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, INC. V. MARGARET M. HECKLER, CIVIL ACTION NO. 83-0124 (D.D.C). THE SUIT WAS BROUGHT BY THE PLAINTIFF, AN ASSOCIATION OF ALJS IN THE SOCIAL SECURITY ADMINISTRATION (SSA), TO CHALLENGE CERTAIN PRACTICES OF SSA IN MANAGEMENT OF ALJS AND THEIR CASE LOADS.

BACKGROUND

THE TRIAL IN THE CASE COMMENCED ON TUESDAY, FEBRUARY 28, 1984, AND CONCLUDED ON MONDAY, MARCH 12, 1984. ON FEBRUARY 22, 1984, PLAINTIFFS COUNSEL MAILED SUBPOENAS TO THE SEVEN ALJS THAT COUNSEL INTENDED TO CALL AS WITNESSES, ORDERING THEM TO APPEAR IN THE FEDERAL COURTHOUSE IN WASHINGTON, D.C., ON FEBRUARY 28, 1984. /1/ THE REGIONAL CHIEF ADMINISTRATIVE LAW JUDGES WERE INSTRUCTED TO GRANT TO EACH ALJ WHO TESTIFIED FOR THE PLAINTIFF COURT LEAVE FOR EACH DAY OF TRAVEL, 1 DAY FOR THE DAY ON WHICH THE JUDGE WAS ORDERED TO APPEAR, AND LEAVE FOR THE DAY ON WHICH THE JUDGE ACTUALLY TESTIFIED. NO JUDGE TESTIFIED FOR MORE THAN 1 DAY. /2/

AT THE END OF THE PAY PERIOD, EACH JUDGE SIGNED FOR THE COURT LEAVE TO WHICH HE OR SHE BELIEVED HIMSELF OR HERSELF ENTITLED AND, PENDING OUR DECISION, NO CHANGES HAVE BEEN MADE IN THE AMOUNTS CLAIMED BY THE INDIVIDUAL JUDGES ON THEIR LEAVE CARDS. THE AGENCY STATES THAT WHEN IT RECEIVES OUR DECISION, ADJUSTMENTS WILL BE MADE AS APPROPRIATE.

ANALYSIS

THE STATUTE GENERALLY APPLICABLE TO COURT LEAVE FOR GOVERNMENT EMPLOYEES AS WITNESSES IN ACTIONS TO WHICH THE UNITED STATES IS A PARTY IS 5 U.S.C. SEC. 6322, WHICH PROVIDES IN SUBSECTION (A) THAT A FEDERAL EMPLOYEE IS ENTITLED TO LEAVE, WITHOUT LOSS OF OR REDUCTION IN PAY OR LEAVE TO WHICH HE IS OTHERWISE ENTITLED, WHEN IN RESPONSE TO A SUMMONS IN CONNECTION WITH A JUDICIAL PROCEEDING HE SERVES: (1) AS A JUROR, OR (2) EXCEPT AS PROVIDED IN SUBSECTION 6322(B), AS A WITNESS ON BEHALF OF ANY PARTY WHEN THE UNITED STATES, THE DISTRICT OF COLUMBIA, OR A STATE OR LOCAL GOVERNMENT IS A PARTY TO THE PROCEEDING.

SECTION 6322(A) WAS AMENDED TO ITS PRESENT FORM IN 1976 WITH A VIEW TOWARD "ELIMINATING INEQUITIES" BETWEEN GOVERNMENT EMPLOYEES APPEARING ON BEHALF OF THE GOVERNMENT WHO ARE EFFECTIVELY PAID FOR THE COURT TIME, "AND THOSE WHO ARE REQUIRED TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY WHEN THEY APPEAR AS WITNESSES ON BEHALF OF A PRIVATE PARTY IN A JUDICIAL PROCEEDING TO WHICH THE UNITED STATES IS A PARTY." S. REP. NO. 830, 94TH CONG., 2D SESS. (1976), REPRINTED IN 1976 U.S.C. CONG. & ADMIN. NEWS, 1207-08. THUS, THE LEGISLATIVE INTENT IS TO TREAT WITNESSES FOR AND AGAINST THE GOVERNMENT AND GOVERNMENT AGENCIES ON EQUAL TERMS.

OUR PAST DECISIONS HAVE HELD THAT THE AUTHORITY OF 5 U.S.C. SEC. 6322 TO GRANT COURT LEAVE TO A GOVERNMENT EMPLOYEE SUMMONED AS A WITNESS IN CERTAIN PROCEEDINGS DOES NOT EXTEND TO AN EMPLOYEE WHO IS THE PLAINTIFF IN SUCH ACTION. WILMA PASAKE, 59 COMP.GEN. 290 (1980), AND JAMES L. SWEENEY, B-201602, APRIL 1, 1981. IN 62 COMG.GEN. 87 (1982), WE APPLIED THIS SAME RATIONALE TO DENY COURT LEAVE TO AN EMPLOYEE WHO WAS THE DEFENDANT IN A STATE COURT ACTION.

THIS LINE OF DECISIONS, HOWEVER, IS NOT APPLICABLE TO THE PRESENT CASE. THE PRECLUSION OF COURT LEAVE FOR AN EMPLOYEE WHO IS A "PARTY IN THE COURT ACTION" DOES NOT EXTEND TO THE MEMBERS OF A PLAINTIFF OR DEFENDANT ORGANIZATION WHERE THE INDIVIDUAL MEMBERS ARE NOT, IN FACT, PARTIES. THIS CASE, THE ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, AN INCORPORATED ORGANIZATION, WAS THE ONLY PLAINTIFF. WHILE THE ASSOCIATION PRESUMABLY SOUGHT TO SERVE THE INTERESTS OF ITS MEMBERSHIP BY THIS LAWSUIT, NONE OF THE MEMBERS WAS NAMED AS A PLAINTIFF NOR WAS THE SUIT MAINTAINED AS A CLASS ACTION ON BEHALF OF THE MEMBERS.

FOR THE ABOVE REASONS, EACH OF THE ALJS IS QUALIFIED FOR COURT LEAVE IN CONNECTION WITH THEIR SERVICE AS WITNESSES. THE ONLY ISSUE THAT REMAINS IS THE AMOUNT OF COURT LEAVE TO WHICH THEY ARE ENTITLED. THE SUBMISSIONS BY THE AGENCY AND THE ALJS DO NOT COME TO GRIPS DIRECTLY WITH THIS ISSUE. AS NOTED PREVIOUSLY, THE AGENCY ALLOWED COURT LEAVE ONLY FOR TRAVEL DAYS, THE DAY THE JUDGE WAS ORDERED TO APPEAR, AND THE DAY HE OR SHE ACTUALLY TESTIFIED. IT IS NOT ENTIRELY CLEAR FROM THE RECORD BEFORE US WHETHER THE ADDITIONAL LEAVE CLAIMED BY THE ALJS REPRESENTS TIME THAT THE ALJS WERE REQUIRED TO SPEND AT THE TRIAL INCIDENT TO THEIR ROLES AS WITNESSES OR WHETHER IT REPRESENTS TIME THEY SPENT THERE AS OBSERVERS OR ADVISORS TO THE ASSOCIATION'S COUNSEL.

WE DO NOT BELIEVE THAT COURT LEAVE MAY BE USED FOR PERIODS OF TIME BEYOND THAT REASONABLY INCIDENT TO THE EMPLOYEE'S ROLE AS A WITNESS. IN ADDITION TO NECESSARY TRAVELTIME AND TIME SPENT TESTIFYING, THIS WOULD INCLUDE TIME WAITING TO TESTIFY. WITH REGARD TO THIS CASE, THE ALJS DO NOT SPECIFICALLY ASSERT, NOR DO THEIR AFFIDAVITS DEMONSTRATE THAT THEIR CLAIMS COVER ONLY WITNESS-RELATED TIME. ON THE OTHER HAND, THE AGENCY DOES NOT SPECIFICALLY ASSERT THAT THE CLAIMS GO BEYOND WITNESS-RELATED TIME. THE AGENCY DOES SAY, AS NOTED ABOVE, THAT APPROPRIATE ADJUSTMENTS WILL BE MADE WHEN OUR DECISION IS RECEIVED.

ACCORDINGLY, WE CANNOT RESOLVE THIS ISSUE ON THE PRESENT RECORD. INSTEAD, WE CONCLUDE THAT THE CLAIMS SHOULD BE ALLOWED AS STATED UNLESS THE AGENCY DETERMINES, AFTER CONSULTATION WITH THE ALJS AND COUNSEL FOR THE ASSOCIATION, THAT THE AMOUNT OF TIME CLAIMED IS EXCESSIVE UNDER THE STANDARD SET FORTH ABOVE.

CONCLUSION

EACH OF THE SEVEN ALJS ATTENDED THE TRAIL IN QUESTION IN RESPONSE TO A SUMMONS IN CONNECTION WITH A JUDICIAL PROCEEDING FOR WHICH THEY SERVED AS WITNESSES ON BEHALF OF A PLAINTIFF ORGANIZATION WHERE THE UNITED STATES WAS A PARTY TO THE PROCEEDING. ACCORDINGLY, WE CONCLUDE THAT THE SEVEN ALJS SHOULD BE ALLOWED COURT LEAVE UNDER 5 U.S.C. SEC. 6322(A)(2) FOR THE AMOUNT OF TIME THAT EACH JUDGE IS ENTITLED TO UNDER THE STANDARDS SET FORTH ABOVE.

IF ANY ANNUAL LEAVE THAT IS CREDITED TO THE SEVEN ADMINISTRATIVE LAW JUDGES AS A RESULT OF THIS DECISION IS REQUIRED TO BE FORFEITED BY THE MAXIMUM CARRY-OVER PROVISION OF 5 U.S.C. SEC. 6304(A), THEN SUCH FORFEITED LEAVE SHOULD BE TREATED AS HAVING BEEN CAUSED BY ADMINISTRATIVE ERROR AND CREDITED TO A SEPARATE LEAVE ACCOUNT FOR THE EMPLOYEE UNDER 5 U.S.C. SEC. 6304(D)(1) AND (2).

/1/ SEVERAL ANCILLARY ISSUES HAVE BEEN RESOLVED THROUGH THE COMPILATION AND AUGMENTATION OF THE ADMINISTRATIVE RECORD IN THIS CASE. FOR EXAMPLE, THE AGENCY ALLEGED THAT SUBPOENAS FOR THE ALJS LACKED THE SEAL OF THE DISTRICT COURT AND ALL THE ALJS TO WHOM THEY WERE MAILED RESIDED BEYOND THE 100-MILE LIMIT SET FORTH IN RULE 45 OF THE FEDERAL RULES OF CIVIL PROCEDURE. THE ASSOCIATION HAS VERIFIED THAT WHILE THE EMBOSSED SEAL MAY NOT BE VISIBLE ON THE PHOTOCOPIES OF THE SUBPOENAS THE ORIGINALS WERE STAMPED WITH THE SEAL OF THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. THE ASSOCIATION ALSO CONVINCINGLY ARGUES THAT THE WITNESSES BECAME SUBJECT TO THE SUBPOENAS WHEN THEY ARRIVED WITHIN THE 100-MILE LIMIT AND REMAINED UNDER THE COMPULSION THEREOF UNTIL THEY WERE RELEASED BY THE ASSOCIATION'S ATTORNEYS. IN ANY EVENT, IT IS CLEAR FROM THE COURT LEAVE STATUTE AND ITS LEGISLATIVE HISTORY THAT AN OFFICIAL "SUBPOENA" IS NOT NEEDED IN ORDER TO SATISFY THE REQUIREMENT OF A "SUMMONS" CONTAINED IN 5 U.S.C. SEC. 6322. S. REP. 1371, 91ST CONG., 2D SESS., REPRINTED IN 1970 U.S.C. CONG. & AD. NEWS 5014, 5019 (A SUMMONS IS AN OFFICIAL REQUEST, INVITATION, OR CALL, EVIDENCED BY AN OFFICIAL WRITING); S. REP. NO. 830, 94TH CONG., 2D SESS. REPRINTED IN 1976 U.S.C. CONG. & AD. NEWS 1207. FINALLY, THE AGENCY EXPRESSED UNCERTAINTY AS TO WHETHER THE ALJS RECEIVED CUSTOMARY WITNESS FEES WITH REGARD FOR 5 U.S.C. SEC. 5515. THE ASSOCIATION ADVISED THIS OFFICE THAT THE ALJS WERE ASKED TO WAIVE THOSE FEES AND NO SUCH FEES WERE IN FACT PAID.

/2/ THE DATES ON WHICH THE JUDGES ACTUALLY TESTIFIED IN THE COURTROOM ARE AS FOLLOWS: JUDGE CHARLES N. BONO TESTIFIED ON FEBRUARY 28. JUDGES ROBERT B. MURDOCK, FRANCIS MAYHUE, DAVID T. HUBBARD, JERRY THOMASSON, AND JOYCE KRUTICK BARLOW TESTIFIED ON FEBRUARY 29 AND JUDGE AINSWORTH H. BROWN TESTIFIED AS A REBUTTAL WITNESS ON MARCH 12. BECAUSE THE TRIAL DID NOT PROCEED AS QUICKLY AS PLAINTIFFS COUNSEL HAD ANTICIPATED, SEVERAL OF THE ALJS (THOMASSON, HUBBARD AND MAYHUE), WHO TESTIFIED ON THE 29TH HAD BEEN EXPECTED TO TESTIFY ON THE 28TH.