B-46084, DECEMBER 13, 1944, 24 COMP. GEN. 450

B-46084, DECEMBER 13, 1944, 24 COMP. GEN. 450

PER DIEM EMPLOYEES - JURY SERVICE IN STATE COURTS OUTSIDE REGULAR TOUR OF DUTY - CREDITING OF JURY FEES TO COMPENSATION SECTION 3 OF THE ACT OF JUNE 29, 1940, REQUIRING THE CREDITING OF FEES RECEIVED BY A FEDERAL EMPLOYEE FOR JURY SERVICE IN A STATE COURT AGAINST THE AMOUNT OF COMPENSATION PAYABLE BY THE UNITED STATES "FOR SUCH PERIOD AS SUCH EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE," HAS NO APPLICATION TO JURY FEES RECEIVED BY AN EMPLOYEE COMPENSATED ON A PER DIEM --- AS DISTINGUISHED FROM PER ANNUM--- BASIS WHO PERFORMED JURY SERVICE IN A STATE COURT ON DAYS ON WHICH HE WORKED HIS ENTIRE TOUR OF DUTY FOR WHICH HE WAS COMPENSATED BY THE UNITED STATES. 21 COMP. GEN. 1148, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, DECEMBER 13, 1944:

I HAVE YOUR LETTER OF DECEMBER 1, 1944, JAG:II:WJG:Z, P18-1 ( THOMAS, JOS. M.), AS FOLLOWS:

THERE IS ENCLOSED HEREWITH A LETTER FROM THE ASSISTANT DIRECTOR, DIVISION OF SHORE ESTABLISHMENTS AND CIVILIAN PERSONNEL, NAVY DEPARTMENT, DATED NOVEMBER 23, 1944, RELATIVE TO THE RIGHT OF JOSEPH M. THOMAS, A CIVILIAN EMPLOYEE OF THE NAVY DEPARTMENT, TO RETAIN JURY FEES WHILE AT THE SAME TIME PERFORMING WORK ON THE 4:00 P.M. TO 12:00 MIDNIGHT SHIFT AS A HELPER, GENERAL, AT THE DAVID TAYLOR MODEL BASIN, CARDEROCK, MARYLAND.

IN CONNECTION WITH THE FOREGOING, PARTICULAR ATTENTION IS INVITED TO SECTIONS 2 AND 3 OF THE ACT OF JUNE 29, 1940 (54 STAT. 689; 5 U.S.C. 30N, 30O, 30P) "TO PROVIDE FOR LEAVE OF ABSENCE, WITH PAY, FOR 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," AS QUOTED IN THE ENCLOSURE.

YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION PRESENTED IN THE ENCLOSURE, NAMELY, WHETHER SECTIONS 2 AND 3 OF THE CITED ACT OF JUNE 29, 1940, ARE APPLICABLE IN THIS CASE, THAT IS UNDER THE CIRCUMSTANCES DISCLOSED, WHETHER OR NOT THERE SHOULD BE CREDITED AGAINST THE AMOUNT OF COMPENSATION PAYABLE TO MR. THOMAS BY THE NAVY DEPARTMENT THE AMOUNT HE RECEIVED FOR JURY SERVICE ON OCTOBER 9 AND 11, 1944.

THE LETTER FROM THE ASSISTANT DIRECTOR, DIVISION OF SHORE ESTABLISHMENTS AND CIVILIAN PERSONNEL, NAVY DEPARTMENT, DATED NOVEMBER 23, 1944, FORWARDED WITH YOUR LETTER, READS:

SUBJECT: JURY DUTY PERFORMED BY JOSEPH M. THOMAS WHILE AT THE SAME TIME PERFORMING WORK ON THE 4 P.M. TO 12:00 MIDNIGHT SHIFT AS A HELPER, GENERAL, AT THE DAVID TAYLOR MODEL BASIN, CARDEROCK, MARYLAND--- REQUEST FOR COMPTROLLER DECISION AS TO WHETHER HE MAY RETAIN JURY FEES.

REF: (A) THE ACT OF 29 JUNE 1940 "TO PROVIDE FOR LEAVE OF ABSENCE, WITH PAY, FOR 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.'

1. THE SUBJECT EMPLOYEE, HELPER, GENERAL, MAXIMUM RATE, $7.12 PER DIEM, EMPLOYED ON THE 4 P.M. TO 12:00 MIDNIGHT SHIFT, AT THE DAVID TAYLOR MODEL BASIN, CARDEROCK, MARYLAND, RECEIVED A SUMMONS TO SERVE AS A JUROR IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY AT MANASSAS, VIRGINIA, ON 9 OCTOBER 1944. THE NAVAL ACTIVITY AT CARDEROCK WAS NOT AWARE THAT MR. THOMAS WAS SERVING ON THE JURY UNTIL HE PRESENTED A CERTIFICATE FROM THE COURT INDICATING THAT HE SERVED AS A JUROR TWO DAYS--- 9 AND 11 OCTOBER 1944. HE WAS EXCUSED BY THE COURT ON 10 OCTOBER 1944. MR. THOMAS WORKED ON THE 4 P.M. TO 12:00 MIDNIGHT SHIFT AT CARDEROCK, ON 9, 10 AND 11 OCTOBER 1944.

2. REFERENCE (A) READS AS FOLLOWS:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, 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 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.'

AS MR. THOMAS ACTUALLY WORKED AT THE DAVID TAYLOR MODEL BASIN ON 9 AND 11 OCTOBER 1944, WHILE AT THE SAME TIME PERFORMING JURY SERVICE ON THOSE DAYS, IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER SECTIONS 2 AND 3 OF THE ABOVE-QUOTED ACT WOULD APPLY IN HIS CASE,--- SPECIFICALLY, UNDER THE ABOVE CIRCUMSTANCES, INFORMATION IS REQUESTED AS TO WHETHER OR NOT THERE SHALL BE CREDITED AGAINST THE AMOUNT OF COMPENSATION PAYABLE TO MR. THOMAS BY THE NAVY DEPARTMENT, THE AMOUNT HE RECEIVED FOR JURY SERVICE ON 9 AND 11 OCTOBER 1944.

AS THE INVOLVED EMPLOYEE SERVED ON A JURY IN A STATE COURT, THERE IS FOR APPLICATION, IN ANSWERING THE QUESTION PRESENTED, ONLY SECTION 3 OF THE ACT OF JUNE 29, 1940, 54 STAT. 689, QUOTED IN THE LETTER OF NOVEMBER 23, 1944, SUPRA, WHICH SPECIFICALLY REQUIRES THE CREDITING OF JURY FEES RECEIVED FROM A STATE COURT 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. IF, AS IS UNDERSTOOD FROM YOUR LETTER, THE EMPLOYEE HERE INVOLVED (WHO IS NOT PAID ON AN ANNUAL BASIS) WORKED HIS ENTIRE TOUR OF DUTY FOR WHICH HE IS PAID COMPENSATION BY THE UNITED STATES--- THE JURY SERVICE IN A STATE COURT HAVING BEEN PERFORMED OUTSIDE OF HIS REGULAR TOUR OF DUTY--- THEN THIS COURT DUTY DID NOT INVOLVE AN ABSENCE FROM DUTY FOR ANY PERIOD FOR WHICH THE GOVERNMENT PAID HIM COMPENSATION. ACCORDINGLY, THERE APPEARS NO REQUIREMENT OF LAW THAT THE JURY FEES RECEIVED BY HIM FROM A STATE COURT BE APPLIED TO MAKE THE GOVERNMENT WHOLE BECAUSE THE GOVERNMENT LOST NONE OF HIS SERVICE BY REASON OF HIS STATE JURY SERVICE.

IN SO HOLDING, THERE HAS NOT BEEN OVERLOOKED THE DECISION OF JUNE 30, 1942, 21 COMP. GEN. 1148, AND THE DECISION THEREIN CITED, INVOLVING A POSTAL EMPLOYEE PAID ON AN ANNUAL BASIS WHO SERVED ON A JURY IN A STATE COURT DURING A LAY-OFF PERIOD. IN THAT CASE, THE POSTAL EMPLOYEE CONSTRUCTIVELY WAS ON DUTY DURING THE LAY-OFF PERIOD AND HE RECEIVED COMPENSATION FOR SUCH PERIOD--- WHICH IS NOT THE SITUATION IN THE INSTANT CASE. OF COURSE, IF THE EMPLOYEE HERE INVOLVED HAD SERVED ON A JURY IN A UNITED STATES COURT, SECTION 2 OF THE STATUTE WOULD HAVE PROHIBITED PAYMENT OF FEES FOR JURY SERVICE, BUT THE SAME PROHIBITION IS NOT CONTAINED IN SECTION 3 OF THE STATUTE AND THE DUAL COMPENSATION ACT OF 1916, 5 U.S.C. 59, DOES NOT APPLY TO PROHIBIT THE PAYMENT OF COMPENSATION A FEES FOR JURY SERVICE IN A STATE COURT.

ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.