B-67724, AUGUST 13, 1947, 27 COMP. GEN. 83

B-67724, AUGUST 13, 1947, 27 COMP. GEN. 83

WITNESSES; JURORS - GOVERNMENT EMPLOYEES - COMPENSATION, ETC. IN VIEW OF THE PROHIBITION IN SECTION 850, REVISED STATUTES, AS AMENDED AGAINST RECEIPT BY AN EMPLOYEE OF MILEAGE OR COMPENSATION "IN ADDITION TO HIS SALARY" AND TRAVELING EXPENSES PROVIDED FOR THEREIN, WHEN SERVING AS A GOVERNMENT WITNESS, AN EMPLOYEE WHO IS SUBPOENAED OR OTHERWISE ORDERED TO APPEAR AS A GOVERNMENT WITNESS IN HIS OFFICIAL CAPACITY IS NOT ENTITLED TO OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, OR TO ANY OTHER COMPENSATION, WHERE THE APPEARANCE IN COURT IS ON A DAY OUTSIDE OF HIS REGULAR WORKWEEK; NOR IS AN EMPLOYEE TESTIFYING IN HIS OFFICIAL CAPACITY FOR A PRIVATE PARTY ENTITLED TO COMPENSATION ON SUCH DAY. 26 COMP. GEN. 151, AMPLIFIED. AN EMPLOYEE CALLED AS A COURT WITNESS TO TESTIFY IN HIS OFFICIAL CAPACITY, WHETHER IN BEHALF OF THE GOVERNMENT OR A PRIVATE PARTY, OR WHETHER THE APPEARANCE IN COURT IS DUE TO ISSUANCE OF A SUBPOENA OR OTHER FORM OF ORDER OR REQUEST, IS TO BE CONSIDERED AS IN AN OFFICIAL DUTY STATUS AS DISTINGUISHED FROM A LEAVE STATUS,"COURT" OR OTHERWISE; HOWEVER, WHERE THE APPEARANCE IN COURT IS OTHER THAN IN BEHALF OF THE GOVERNMENT OR THE DISTRICT OF COLUMBIA AND IN OTHER THAN HIS OFFICIAL CAPACITY, HIS ABSENCE FROM REGULAR DUTY MUST BE CHARGED AS EITHER ANNUAL LEAVE OR LEAVE WITHOUT PAY. WHERE AN EMPLOYEE IS IN AN ANNUAL LEAVE STATUS WHEN SUMMONED FOR JURY DUTY IN A STATE OR UNITED STATES COURT, COURT LEAVE SHOULD BE SUBSTITUTED FOR ANNUAL LEAVE FOR THE PERIOD OF SUCH DUTY, BUT IF THE EMPLOYEE IS IN A LEAVE WITHOUT PAY STATUS, COURT LEAVE IS NOT AVAILABLE TO HIM--- SUCH LEAVE BEING AVAILABLE ONLY TO EMPLOYEES WHO OTHERWISE WOULD BE IN A DUTY STATUS OR AN AUTHORIZED LEAVE WITH PAY STATUS. IF AN EMPLOYEE WHO COMES WITHIN THE PROVISIONS OF SECTION 1671, REVISED STATUTES, EXEMPTING ARTIFICERS AND WORKERS EMPLOYED IN ARMORIES AND ARSENALS OF THE UNITED STATES FROM SERVICE AS JURORS IN ANY COURT SHOULD FAIL TO ADVISE THE COURT OF HIS EXEMPTION RIGHT, OR THE COURT SHOULD FAIL OR REFUSE TO EXCUSE THE EMPLOYEE FROM JURY SERVICE, THE EMPLOYEE WOULD BE ENTITLED UNDER THE ACT OF JUNE 29, 1940, TO THE COMPENSATION OF HIS USUAL EMPLOYMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 13, 1947:

BY LETTER OF JULY 1, 1947, YOUR PREDECESSOR REQUESTED DECISION ON CERTAIN QUESTIONS PRESENTED, AS FOLLOWS:

1. WHERE AN EMPLOYEE IS REQUIRED ON A REGULARLY ESTABLISHED NON-WORK DAY TO APPEAR IN A COURT OF THE UNITED STATES AS A WITNESS IN CONNECTION WITH HIS OFFICIAL DUTIES, DOES THE ISSUANCE OF ORDERS FOR TRAVEL IN CONNECTION THEREWITH RESTORE THE EMPLOYEE TO PAY STATUS ON THE NON-WORK DAY? CONSIDERATION HAS BEEN GIVEN TO THE HOLDING IN 24 COMP. GEN. 225 THAT WHERE AN EMPLOYEE WHO IS ON LEAVE, TERMINAL OR OTHERWISE, IS REQUIRED TO APPEAR AS A WITNESS FOR THE UNITED STATES IN A CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED, THE ISSUANCE TO HIM OF A TRAVEL ORDER PURSUANT TO WHICH HE IS AUTHORIZED TO BE PAID TRAVELING EXPENSES HAS THE EFFECT OF RESTORING HIM TO AN ACTIVE DUTY STATUS. HOWEVER, A DAY OF LEAVE OR LEAVE WITHOUT PAY IS DISTINGUISHED FROM A REGULARLY ESTABLISHED NON WORK DAY.

2. WHERE THE OFFICIAL DUTIES OF AN EMPLOYEE DO NOT REQUIRE HIS APPEARANCE IN COURT AS A WITNESS, OR WHERE THE EMPLOYEE IS CALLED AS A WITNESS BECAUSE OF HIS OFFICIAL CAPACITY BUT ISSUANCE OF TRAVEL ORDERS IS NOT REQUIRED BECAUSE THE COURT IS LOCATED IN THE VICINITY OF HIS EMPLOYMENT, DOES THE ISSUANCE OF A SUMMONS, SUBPOENA, OR OTHER FORM OF REQUEST IN WRITING FOR APPEARANCE IN A U.S. OR STATE COURT AS A JUROR OR WITNESS CONSTITUTE AUTHORITY FOR AN APPOINTING OFFICIAL TO:

A. RESTORE THE EMPLOYEE TO PAY STATUS ON A NON-WORK DAY?

B. RESTORE THE EMPLOYEE TO ACTIVE DUTY AND PAY STATUS DURING A PERIOD OF LEAVE OR LEAVE WITHOUT PAY?

C. RETAIN THE EMPLOYEE IN REGULAR PAY STATUS (THAT IS WITHOUT CHARGE TO LEAVE OR LEAVE WITHOUT PAY) DURING ABSENCE FOR SUCH DUTY ON REGULARLY SCHEDULED WORK DAYS WHEN THE EMPLOYEE WOULD HAVE PERFORMED HIS OFFICIAL DUTIES EXCEPT FOR THE REQUIRED APPEARANCE OR DUTY IN COURT?

IN CONNECTION WITH QUESTION NUMBER TWO, CONSIDERATION HAS BEEN GIVEN TO 20 COMP. GEN. 276, 10 ID. 329, AND 12 ID. 359 THAT EMPLOYEES WHO ARE NOT IN A DUTY STATUS AT THE TIME OF SUMMONS FOR JURY OR WITNESS DUTY ARE NOT PLACED IN A DUTY STATUS BY REASON OF RECEIPT OF THE SUMMONS. CONFUSION ARISES, HOWEVER, UPON READING 26 COMP. GEN. 151. QUOTING FROM THE SYLLABUS OF THE ATTER:

"/B-60161)

"THE ESTABLISHMENT OF A 5-DAY, 40-HOUR WORKWEEK, WHILE EXCUSING EMPLOYEES FROM PERFORMANCE OF DUTIES ON TWO DAYS EACH WEEK, EXCEPT WHEN OVERTIME WORK IS REQUIRED, DOES NOT REMOVE SUCH EMPLOYEES FROM THE CATEGORY OF EMPLOYEES OF THE UNITED STATES DURING SUCH NON WORKDAYS, AND, THEREFORE, SUCH EMPLOYEES WHEN SUBPOENAED AS WITNESSES IN THE UNITED STATES COURTS ON THEIR REGULAR NON-WORKDAYS ARE NOT ENTITLED TO WITNESS FEES OR OTHER COMPENSATION IN ADDITION TO THEIR SALARIES OTHER THAN THE MILEAGE AND PER DIEM ALLOWANCES AUTHORIZED BY SECTION 850, REVISED STATUTES, AS AMENDED. 10 COMP. GEN. 329; 12 ID. 359, DISTINGUISHED.

" GOVERNMENT EMPLOYEES SUBPOENAED AS WITNESSES IN THE UNITED STATES COURTS ARE ENTITLED TO OVERTIME COMPENSATION WHEN THE EMPLOYEES' ADMINISTRATIVE WORKWEEK WOULD HAVE REQUIRED THEM TO PERFORM OVERTIME WORK ON THE DAYS ON WHICH THEY APPEARED IN COURT, BUT ARE NOT ENTITLED TO OVERTIME COMPENSATION WHEN THE DAYS IN QUESTION ARE NOT INCLUDED IN THEIR REGULARLY ESTABLISHED WORKWEEK.' ( ITALICS SUPPLIED.) SINCE EMPLOYEES DO NOT ACTUALLY RECEIVE SALARY ON THEIR NON-WORK DAYS, IT IS ASSUMED THAT THE PHRASE "IN ADDITION TO THEIR SALARIES" MEANS AGGREGATE PER ANNUM TAKE-HOME PAY. IF CORRECT, CONFIRMATION OF THIS INTERPRETATION IS REQUESTED.

TITLE II--- COMPENSATION FOR OVERTIME, PUBLIC LAW 106--- 79TH CONGRESS,"THE FEDERAL EMPLOYEES PAY ACT OF 1945" CONTAINS THE FOLLOWING PROVISION:

"SEC. 201. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES SHALL, IN ADDITION TO THEIR BASIC COMPENSATION, BE COMPENSATED FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK-WEEK, AT OVERTIME RATES AS FOLLOWS: * * *" THE DEPARTMENT HAS BEEN UNABLE SATISFACTORILY TO RECONCILE THE CITED PROVISION OF PUBLIC LAW 106 WITH THE RULING IN 26 COMP. GEN. 151 THAT EMPLOYEES ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR WITNESS DUTY ON DAYS NOT INCLUDED IN THEIR REGULARLY ESTABLISHED WORKWEEK. SPECIFICALLY, DOES WITNESS DUTY CONSTITUTE WORK OFFICIALLY ORDERED OR APPROVED WITHIN THE MEANING OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945?

REFERENCE IS MADE ALSO TO SECTION 1871 (1671) OF THE REVISED STATUTES IN WHICH APPEARS THE FOLLOWING PROVISION:

"ALL ARTIFICERS AND WORKERS EMPLOYED IN THE ARMORIES AND ARSENALS OF THE UNITED STATES SHALL BE EXEMPTED, DURING THEIR TIME OF SERVICE, FROM SERVICE AS JURORS IN ANY COURT.'

IN THE EVENT OF JURY DUTY BY THE ABOVE TYPE OF EMPLOYEE, GENERALLY UNDERSTOOD TO BE ELECTRICIANS, CARPENTERS, MECHANICS AND SIMILAR CRAFTSMEN, ARE CERTIFYING OFFICERS REQUIRED TO REFUSE PAYMENT OF REGULAR SALARY TO THE EMPLOYEES FOR DAYS OF ABSENCE FOR JURY DUTY?

THE FIRST QUESTION IS NOT ENTIRELY CLEAR. HOWEVER, IT IS UNDERSTOOD THAT IT RELATES PARTICULARLY TO WHETHER THE ISSUANCE OF TRAVEL ORDERS TO AN EMPLOYEE WHO IS TO APPEAR AS A WITNESS FOR THE GOVERNMENT IN A COURT OF THE UNITED STATES IN CONNECTION WITH HIS OFFICIAL DUTIES IS SUFFICIENT TO AUTHORIZE PAYMENT OF EITHER REGULAR OR OVERTIME COMPENSATION TO SUCH EMPLOYEE WHERE THE APPEARANCE IN COURT IS ON A DAY WHICH IS NOT INCLUDED WITHIN THE REGULAR ADMINISTRATIVE WORKWEEK.

WHILE THE APPEARANCE IN COURT OF SUCH AN EMPLOYEE ORDINARILY IS TO BE TREATED AS IN THE PERFORMANCE OF DUTY UNDER HIS EMPLOYMENT (24 COMP. GEN. 225; 19 ID. 716; 7 ID. 690; 4 ID 91), SECTION 850, REVISED STATUTES, AS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088, 28 U.S.C. 604, SPECIFICALLY PRECLUDES THE PAYMENT OF ANY AMOUNT ON ACCOUNT OF SUCH DUTY OTHER THAN THAT PROVIDED THEREIN. THAT SECTION, WITH REFERENCE TO ANY OFFICER OR EMPLOYEE OF THE UNITED STATES SUMMONED AS A WITNESS FOR THE GOVERNMENT, NOT ONLY PROVIDES FOR THE PAYMENT OF EXPENSES INCIDENT TO TRAVEL, BUT, ALSO, SPECIFICALLY PROVIDES, WITH REFERENCE TO SUCH AN OFFICER OR EMPLOYEE, THAT "NO MILEAGE OR OTHER COMPENSATION IN ADDITION TO HIS SALARY SHALL IN ANY CASE BE ALLOWED.'

AFTER QUOTING FROM THAT SECTION, IT WAS STATED IN THE DECISION OF SEPTEMBER 4, 1946, B-60161, 26 COMP. GEN. 151, 152:

THE ESTABLISHMENT OF A 5-DAY, 40-HOUR WEEK, WHILE EXCUSING THE EMPLOYEES FROM THE PERFORMANCE OF DUTIES ON 2 DAYS EACH WEEK, EXCEPT WHEN OVERTIME WORK IS REQUIRED, DOES NOT REMOVE SUCH EMPLOYEES FROM THE CATEGORY OF EMPLOYEES OF THE UNITED STATES DURING SUCH NONWORKDAYS. ACCORDINGLY, SUCH EMPLOYEES WHEN SUBPOENAED AS WITNESSES IN THE UNITED STATES COURTS ON THEIR NONWORKDAYS ARE NOT ENTITLED TO WITNESS FEES OR OTHER COMPENSATION IN ADDITION TO THEIR SALARIES OTHER THAN THE MILEAGE AND PER DIEM ALLOWANCES AUTHORIZED BY SAID SECTION 850, REVISED STATUTES, SUPRA. CF. B- 19454, AUGUST 27, 1941, AND 22 COMP. GEN. 743.

I FIND NOTHING IN SECTION 201 OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945, 59 STAT. 296--- PARTIALLY QUOTED IN YOUR LETTER, AND WHICH SECTION, NATURALLY, WAS CONSIDERED IN ARRIVING AT THE CONCLUSION ANNOUNCED IN THE ABOVE DECISION--- THAT WOULD WARRANT A CONCLUSION DIFFERENT FROM THE ONE REACHED IN THAT DECISION OR WHICH WOULD JUSTIFY A HOLDING THAT THE SPECIFIC PROHIBITION CONTAINED IN SECTION 850, REVISED STATUTES, SUPRA, NO LONGER IS FOR APPLICATION. THE REFERENCE TO ,SALARY" CONTAINED IN THAT SECTION OF THE REVISED STATUTES, AS WELL AS THE PHRASE,"IN ADDITION TO THEIR SALARIES," APPEARING IN THE ABOVE DECISION, MEANS THE SALARY RECEIVED FROM THE USUAL EMPLOYMENT FOR THE DAY OR DAYS OF APPEARANCE IN COURT. THAT IS TO SAY, IF A PERSON OCCUPIES A STATUS AS A SALARIED EMPLOYEE, HE MAY NOT BE PAID ANY AMOUNT IN ADDITION TO HIS USUAL SALARY, ON ACCOUNT OF HIS APPEARANCE IN COURT, EVEN THOUGH SUCH APPEARANCE IN COURT IS ON A DAY WHICH OTHERWISE WOULD BE A REGULARLY ESTABLISHED NONWORKDAY.

THE SECOND QUESTION IS STATED TOO BROADLY TO PERMIT OF A CATEGORICAL ANSWER THERETO. HOWEVER, AN EFFORT WILL BE MADE TO PREVENT THE VARIOUS SITUATIONS WHICH MAY BE ENCOMPASSED BY THAT QUESTION AND TO INDICATE THE PROPER DUTY OR LEAVE STATUS FOR AN EMPLOYEE IN EACH SUCH SITUATION. CONNECTION WITH THAT QUESTION, THERE IF FOR CONSIDERATION SECTION 30.204 OF THE CURRENT LEAVE REGULATIONS WHICH PROVIDES:

WHEN AN EMPLOYEE IS ABSENT FROM DUTY AND IN ATTENDANCE IN COURT AS A WITNESS IN BEHALF OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR FOR JURY DUTY IN ANY STATE COURT OR COURT OF THE UNITED STATES, THE ABSENCE FROM DUTY SHALL NOT BE CHARGED AGAINST ANNUAL LEAVE BUT SHOULD BE RECORDED AS "COURT LEAVE.'

THAT SECTION IS FOR APPLICATION WHENEVER AN EMPLOYEE APPEARS IN COURT AS A WITNESS IN BEHALF OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, EXCEPT WHEN THE EMPLOYEE APPEARS IN A CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH HE IS EMPLOYED. IN THE LATTER SITUATION, THE EMPLOYEE IS IN AN ACTIVE DUTY STATUS REGARDLESS OF WHETHER HIS APPEARANCE IN COURT IS DUE TO THE ISSUANCE OF A SUBPOENA OR OTHER FORM OF ORDER OR REQUEST. 24 COMP. GEN. 225.

WHEN THE EMPLOYEE IS DIRECTED BY SUBPOENA OR OTHERWISE TO TESTIFY IN HIS OFFICIAL CAPACITY ON BEHALF OF A PRIVATE PARTY, THE EMPLOYEE LIKEWISE IS CONSIDERED AS IN AN OFFICIAL DUTY STATUS AND IS NOT TO BE REGARDED AS IN A "COURT LEAVE" OR ANY OTHER KIND OF LEAVE STATUS. IN THAT CONNECTION, IT WAS STATED IN 15 COMP. GEN. 196, 197:

SECTION 850, REVISED STATUTES, LIMITS GOVERNMENT EMPLOYEES SUBPOENAED TO TESTIFY AS A WITNESS FOR THE GOVERNMENT TO REIMBURSEMENT OF NECESSARY EXPENSES AND PROHIBITS PAYMENT OF ANY MILEAGE OR OTHER COMPENSATION IN ADDITION TO THEIR SALARY. ON THE OTHER HAND, GOVERNMENT EMPLOYEES SUBPOENAED IN PRIVATE LITIGATION OR BY SOME PARTY OTHER THAN THE FEDERAL GOVERNMENT TO TESTIFY, NOT IN THEIR OFFICIAL CAPACITY BUT, AS INDIVIDUALS, ARE ENTITLED TO THE USUAL FEES AND EXPENSES BUT THE TIME ABSENT BY REASON THEREOF MUST BE TAKEN AS ANNUAL LEAVE OR LEAVE WITHOUT PAY. HOWEVER, WHERE THE VALUE OF THE WITNESS' TESTIMONY IN PRIVATE LITIGATION ARISES FROM HIS OFFICIAL CAPACITY AND HE IS SUBPOENAED SOLELY BECAUSE OF AND TO TESTIFY IN THAT CAPACITY OR TO PRODUCE OFFICIAL RECORDS, HE MAY BE REGARDED AS IN A DUTY AND PAY STATUS DURING THE PERIOD OF HIS NECESSARY ABSENCE IN RESPONDING TO SUCH SUBPOENA. UNDER SUCH CIRCUMSTANCES, AS THE UNITED STATES IS DEPRIVED OF HIS SERVICES WHILE SO TESTIFYING THE THE EMPLOYEE SHOULD BE INSTRUCTED TO COLLECT THE AUTHORIZED WITNESS FEES AND ALLOWANCES FOR EXPENSES OF TRAVEL AND SUBSISTENCE. ALL AMOUNTS SO COLLECTED OVER AND ABOVE THE AMOUNT OF HIS ACTUAL EXPENSE SHOULD BE ACCOUNTED FOR THROUGH YOUR DEPARTMENT AND DEPOSITED AS MISCELLANEOUS RECEIPTS.

AS TO THE PROCEDURE FOR FOLLOWING IN SUCH A CASE, SEE 23 COMP. GEN. 628, 630, WHEREIN AFTER CONSIDERING THE ABOVE QUOTATION FROM 15 COMP. GEN. 196, 197, IT WAS STATED:

APPLYING THAT RULING TO THE PRESENT MATTER, WHERE THE PETITIONER OR THE DEFENDANT OBTAINS A SUBPOENA FOR A SALARIED EMPLOYEE OF THE SELECTIVE SERVICE SYSTEM TO TESTIFY IN HIS OFFICIAL CAPACITY, BUT ON BEHALF OF SUCH PRIVATE PARTY, (1) THE EMPLOYEE IS IN AN OFFICIAL DUTY STATUS; (2) NO WITNESS FEE IS PAYABLE BY THE UNITED STATES (SECTION 1 OF THE ACT OF APRIL 26, 1926, 44 STAT. 323); (3) NO TRAVEL EXPENSES ARE PAYABLE BY THE SELECTIVE SERVICE SYSTEM, THE TESTIMONY NOT BEING "ON BEHALF OF THE UNITED STATES" (SECTION 850, REVISED STATUTES, AS AMENDED); (4) WHETHER ANY TRAVEL EXPENSES ARE PAYABLE UNDER 28 U.S.C. 600C, FROM THE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE, IS FOR DETERMINATION IN THE FIRST INSTANCE BY THAT DEPARTMENT; (5) THE ACCOUNTING TO THE DEPARTMENT SPECIFIED IN THE LAST SENTENCE ABOVE QUOTED FROM 15 COMP. GEN. 196, BEING PARTICULARLY APPLICABLE TO FEES AND EXPENSES COLLECTED IN STATE COURTS, WOULD NOT BE REQUIRED WHERE NO EMOLUMENT FROM ANY SOURCE IS RECEIVED OTHER THAN THE EMPLOYEE'S REGULAR SALARY AND ANY TRAVEL EXPENSE WHICH MAY BE PAYABLE UNDER FEDERAL STATUTE BY THE DEPARTMENT OF JUSTICE.

IN LINE WITH THE ANSWER TO QUESTION ONE, OVERTIME COMPENSATION MAY NOT BE PAID IN THE ABOVE SITUATIONS EXCEPT WHERE THE APPEARANCE IS ON A DAY INCLUDED WITHIN THE REGULAR ADMINISTRATIVE WORKWEEK.

WHEN AN EMPLOYEE APPEARS IN COURT AS A WITNESS OTHER THAN IN BEHALF OF THE UNITED STATES, OR THE DISTRICT OF COLUMBIA, AND IN OTHER THAN HIS OFFICIAL CAPACITY, HE IS NOT TO BE REGARDED AS IN A DUTY STATUS AND ANY ABSENCE FROM DUTY ON ACCOUNT OF SUCH APPEARANCE MUST BE CHARGED EITHER AS ANNUAL LEAVE OR AS LEAVE WITHOUT PAY. 15 COMP. GEN. 196, SUPRA.

ANY APPEARANCE BY AN EMPLOYEE AS A JUROR IN EITHER A STATE COURT OR A COURT OF THE UNITED STATES, IN ACCORDANCE WITH SECTION 30.204 OF THE CURRENT LEAVE REGULATIONS, SUPRA, SHOULD BE RECORDED AS "COURT LEAVE" PROVIDED, OF COURSE, THAT SUCH APPEARANCE INVOLVES AN ABSENCE FROM DUTY. IF THE EMPLOYEE IS IN AN ANNUAL LEAVE STATUS, COURT LEAVE SHOULD BE SUBSTITUTED FOR ANNUAL LEAVE DURING THE PERIOD OF SUCH APPEARANCE. IF THE EMPLOYEE IS IN A LEAVE WITHOUT PAY STATUS DURING THE PERIOD OF SUCH APPEARANCE,"COURT LEAVE" IS NOT AVAILABLE TO HIM. SUCH LEAVE IS AVAILABLE ONLY TO EMPLOYEES WHO OTHERWISE WOULD BE IN A DUTY STATUS OR AN AUTHORIZED LEAVE WITH PAY STATUS. CF. 20 COMP. GEN. 276. FURTHER, WITH RESPECT TO EMPLOYEES SUMMONED FOR JURY SERVICE, THERE ARE FOR CONSIDERATION THE PROVISIONS OF THE ACT OF JUNE 29, 1940, 54 STAT. 689, WHICH READS:

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.

YOUR ATTENTION IS INVITED ESPECIALLY TO SECTION 2 OF THAT ACT WHICH SPECIFICALLY PROHIBITS AN EMPLOYEE CALLED UPON FOR JURY SERVICE IN ANY COURT OF THE UNITED STATES FROM RECEIVING ANY COMPENSATION FOR SUCH SERVICE. SECTION 1 SAVES TO HIM THE COMPENSATION AND LEAVE WHICH HE OTHERWISE WOULD RECEIVE IN HIS USUAL EMPLOYMENT. ALSO, SEE 24 COMP. GEN. 450.

IN CONNECTION WITH EACH OF THE ABOVE SITUATIONS, THERE ALSO IS FOR CONSIDERATION IN APPROPRIATE CASES THE DECISION REPORTED IN 19 COMP. GEN. 716, IN WHICH IT WAS HELD, QUOTING FROM THE SYLLABUS:

WHERE, DUE TO LACK OF APPROPRIATIONS OR WORK, THE DATE OF FURLOUGH WITHOUT PAY OF AN EMPLOYEE HAS ONCE BEEN FIXED ADMINISTRATIVELY SO AS TO PERMIT THE EMPLOYEE TO TAKE HIS ACCRUED UNUSED ANNUAL LEAVE AS CONTEMPLATED BY SECTIONS 8 AND 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, AND THE EMPLOYEE HAS HAD NOTICE THEREOF, THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF THE EMPLOYEE BE EXTENDED FOR THE PURPOSE OF GRANTING ANY OTHER FORM OF LEAVE OF ABSENCE WITH PAY, WHETHER FOR SICKNESS, OR MILITARY DUTY, OR FOR THE PURPOSE OF PERFORMING WITNESS OR JURY DUTY FOR THE GOVERNMENT, WHETHER THE APPLICATION FOR SUCH EXTENSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR OR SUBSEQUENT TO THE TERMINATION DATE PROPERLY FIXED ADMINISTRATIVELY. CF. 24 COMP. GEN. 225.

WITH SPECIFIC REFERENCE TO THE QUESTION REGARDING SECTION 1671 OF THE REVISED STATUTES, QUOTED IN THE LETTER, SUPRA, IT MAY BE STATED THAT SUCH SECTION PRIMARILY IS FOR CONSIDERATION BY THE COURT TO WHICH AN EMPLOYEE MAY BE SUMMONED FOR JURY SERVICE. ANY EMPLOYEE INCLUDED WITHIN THE TERMS OF THAT SECTION WHO IS DIRECTED TO APPEAR FOR JURY SERVICE IN ANY COURT SHOULD ADVISE THE COURT THAT SUCH SECTION EXEMPTS HIM FROM JURY SERVICE. PRESUMABLY, THE COURT THEN WOULD EXCUSE THE EMPLOYEE FROM JURY SERVICE. HOWEVER, IF THE EMPLOYEE FAILS TO ADVISE THE COURT, OR IF THE COURT SHOULD FAIL OR REFUSE TO EXCUSE THE EMPLOYEE FROM JURY SERVICE AFTER BEING SO ADVISED, THEN, UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF JUNE 29, 1940, SUPRA, THE COMPENSATION OF THAT EMPLOYEE COULD NOT BE DIMINISHED DURING THE PERIOD OF ABSENCE ON JURY SERVICE EXCEPT AS PROVIDED IN SECTION 3 OF THAT ACT.