B-171637, APR 4, 1973, 52 COMP GEN 626

B-171637, APR 4, 1973, 52 COMP GEN 626

COURTS - JURORS - FEES - GOVERNMENT EMPLOYEES IN FEDERAL COURTS - SEQUESTERED JURORS THE FACT THAT JURY DUTY INVOLVES ONLY 8 HOURS OF ABSENCE FROM A FEDERAL POSITION DOES NOT ENTITLE A FEDERAL EMPLOYEE SEQUESTERED FOR 49 DAYS AS AN ALTERNATE JUROR IN A UNITED STATES DISTRICT COURT TO ADDITIONAL JURY FEES FOR 16 HOURS A DAY ON THE BASIS OF THE "TWO-THIRDS RULE" FOR THE DAYS THAT WERE WITHIN THE EMPLOYEE'S REGULAR TOUR OF DUTY AND FOR WHICH JURY FEES WERE NOT PAID IN ACCORDANCE WITH 5 U.S.C. 5537, WHICH PROHIBITS PAYMENT TO AN EMPLOYEE OF THE UNITED STATES FOR JURY DUTY IN UNITED STATES COURTS WHILE IN A PAY STATUS IN A CIVILIAN POSITION, AS IT IS IMMATERIAL WHETHER THE EMPLOYEE'S PAY STATUS INVOLVED ONLY A PART OF THE PERIOD OF JURY SERVICE SINCE THERE IS NO AUTHORITY TO PAY JURY FEES ON A PRO RATA BASIS.

TO THE NATIONAL VICE PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, APRIL 4, 1973:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 5, 1972, WITH ENCLOSURES, REFERENCE L-1156, REQUESTING A DECISION ON THE CLAIM OF MRS. ROSEMARY A. MCGINN, A FEDERAL EMPLOYEE, FOR ADDITIONAL FEES COVERING JURY SERVICE IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.

THE INFORMATION FURNISHED INDICATES THAT DURING THE PERIOD FEBRUARY 7 APRIL 5, 1972, MRS. MCGINN, WHILE SERVING AS AN ALTERNATE JUROR IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, WAS SEQUESTERED ALONG WITH OTHER JURORS FOR A PERIOD OF 49 DAYS (FEBRUARY 17- APRIL 5, 1972). PURSUANT TO THE COGNIZANT STATUTE (5 U.S.C. 5537), MRS. MCGINN WAS ONLY PAID JURY FEES FOR THOSE DAYS OF SERVICE (14) WHICH WERE NOT WITHIN HER REGULAR TOUR OF DUTY AS A FEDERAL EMPLOYEE (7 WEEKENDS).

WHAT MRS. MCGINN SEEKS NOW IS COMPENSATION FOR THE BALANCE OF THE TIME SHE SERVED AS A JUROR ON THE BASIS OF THE "TWO-THIRDS RULE." THE RATIONALE EMPLOYED IS THAT OF THE 24 HOURS ON ANY DAY WHICH MRS. MCGINN SERVED AS A SEQUESTERED JUROR, ONLY 8 HOURS INVOLVED ABSENCE FROM HER FEDERAL JOB. IN SUCH LIGHT SHE CLAIMS 2/3 OF THE DAILY COMPENSATION PAYABLE TO A JUROR ASSERTING THAT 16 HOURS OF EVERY DAY SERVED IN SUCH A CAPACITY WERE DURING HER NORMAL OFF-DUTY HOURS.

5 U.S.C. 5537 PROVIDES AS FOLLOWS:

(A) AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE (EXCEPT AN INDIVIDUAL WHOSE PAY IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES) OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY NOT RECEIVE FEES FOR SERVICE -

(1) AS A JUROR IN A COURT OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA; OR

(2) AS A WITNESS ON BEHALF OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA.

(B) AN OFFICIAL OF A COURT OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA MAY NOT RECEIVE WITNESS FEES FOR ATTENDANCE BEFORE A COURT, COMMISSIONER, OR MAGISTRATE WHERE HE IS OFFICIATING.

(C) FOR THE PURPOSE OF THIS SECTION, "COURT OF THE UNITED STATES" HAS THE MEANING GIVEN IT BY SECTION 451 OF TITLE 28 AND INCLUDES THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE, THE DISTRICT COURT OF GUAM, AND THE DISTRICT COURT OF THE VIRGIN ISLANDS.

28 U.S.C. 1871 STATES IN PERTINENT PART THAT:

GRAND AND PETIT JURORS IN DISTRICT COURTS OR BEFORE UNITED STATES COMMISSIONERS SHALL RECEIVE THE FOLLOWING FEES, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY LAW:

FOR ACTUAL ATTENDANCE AT THE PLACE OF TRIAL OR HEARING AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND FROM SUCH PLACE AT THE BEGINNING AND END OR SUCH SERVICE OR AT ANY TIME DURING THE SAME, $20 PER DAY, EXCEPT THAT ANY JUROR REQUIRED TO ATTEND MORE THAN THIRTY DAYS IN HEARING ONE CASE MAY BE PAID IN THE DISCRETION AND UPON THE CERTIFICATION OF THE TRIAL JUDGE A PER DIEM FEE NOT EXCEEDING $25 FOR EACH DAY IN EXCESS OF THIRTY DAYS HE IS REQUIRED TO HEAR SUCH CASE.

WE HAVE HELD THAT WHEN AN EMPLOYEE PERFORMS JURY SERVICE AFTER HIS DUTY HOURS, OR ON A NONWORKDAY, OR ON A HOLIDAY (NO COURT LEAVE BEING INVOLVED), HE IS ENTITLED TO PAYMENT OF OR RETENTION OF JURY FEES. COMP. GEN. 378, 379(1956) AND 45 ID. 251(1965).

AS TO JURY DUTY IN A FEDERAL COURT WHERE SUCH DUTY EXTENDS BEYOND THE HOURS COVERED BY AN EMPLOYEE'S COURT LEAVE, WE NOTE THAT A SIMILAR SITUATION WAS THE SUBJECT OF QUESTION 3 AND THE ANSWER THERETO AS CONTAINED IN 36 COMP. GEN. 378 AT PAGE 379(1956). THE QUESTION WAS AS FOLLOWS:

(3) IF THERE IS A PARTIAL CONFLICT BETWEEN THE USUAL HOURS OF EMPLOYMENT OF SUCH AN EMPLOYEE AND THE HOURS OF JURY SERVICE, MAY THE EMPLOYEE COLLECT OR RETAIN THE JURY FEE ON A PRO RATA BASIS TO THE EXTENT OF SUCH CONFLICT?

IN RESPONSE THERETO, THIS OFFICE STATED THAT:

REFERRING TO QUESTION (3), WE SEE NO PROPER LEGAL BASIS UNDER SECTION 2 OF THE ABOVE-QUOTED STATUTE FOR PRORATING ANY JURY FEE IN THE CASE OF JURY SERVICE BY "ANY EMPLOYEE SPECIFIED IN SECTION 1" WHERE THE JURY SERVICE IS "IN ANY COURT OF THE UNITED STATES" - A SITUATION TO WHICH YOUR THIRD QUESTION IS ADDRESSED. UNLIKE SECTION 3 OF THE STATUTE - PROVIDING FOR SOME MEASURE OF "REIMBURSEMENT" TO THE UNITED STATES FOR JURY SERVICE RENDERED IN STATE COURTS WHERE THE COMPENSATION AND ANNUAL LEAVE ACCOUNT OF THE FEDERAL EMPLOYEE CONTINUES WITHOUT DIMINUTION DURING THE PERIOD OF ALL OR A PART OF HIS SCHEDULED TOUR OF DUTY - SECTION 2 IS EXPLICIT IN ITS MANDATE THAT SUCH EMPLOYEE "SHALL NOT RECEIVE ANY COMPENSATION FOR SUCH SERVICE." THAT SECTION OF THE STATUTE HAS CONSISTENTLY BEEN CONSTRUED BY OUR OFFICE AS PROHIBITING PAYMENT TO AN EMPLOYEE OF THE UNITED STATES FOR JURY DUTY FOR THOSE DAYS ON WHICH HE MAY PERFORM JURY SERVICE IN THE UNITED STATES COURTS WHILE IN A PAY STATUS IN HIS CIVILIAN POSITION (29 COMP. GEN. 391), AND WHETHER SUCH PAY STATUS INVOLVES ONLY A PART OF THE PERIOD OF JURY SERVICE IS IMMATERIAL. TO PROVIDE FOR PRORATING UNDER SECTION 2 OF THE STATUTE WOULD BE READING INTO THE STATUTE A PROVISION WHICH IS NOT THERE. WE MUST CONCLUDE, THEREFORE, THAT QUESTION 3 IS FOR ANSWERING IN THE NEGATIVE.

WE SEE NO REASON WHY THE ABOVE CONCLUSION WOULD NOT BE APPLICABLE HERE REGARDLESS OF THE FACT THAT MRS. MCGINN WAS SEQUESTERED FOR 49 DAYS (24 HOURS A DAY). IN THAT CONNECTION WE POINT OUT THAT THE JURY FEE IN A FEDERAL COURT MAY COVER ONLY A SHORT PERIOD OF THE DAY OR THE FULL 24 HOURS. FURTHERMORE, OUR REVIEW OF THE LEGISLATIVE HISTORIES OF THE PROVISIONS OF 5 U.S.C. 5537, INCLUDING THE PREDECESSOR ACT OF JUNE 29, 1940, AND THE PROVISION OF 28 U.S.C. 1871, DOES NOT REVEAL ANY LEGISLATIVE INTENT TO AUTHORIZE PARTIAL JUROR FEES IN THE EVENT OF AN OVERLAP OF THE TIME A FEDERAL EMPLOYEE SERVES AS A JUROR AND THE TIME OF HIS NORMALLY SCHEDULED TOUR OF DUTY.

ACCORDINGLY, WE PERCEIVE NO BASIS UPON WHICH MRS. MCGINN COULD PROPERLY BE PAID JURY FEES ON A PRO RATA BASIS DURING THE PERIOD IN QUESTION. ASSUME SHE HAS FILED OR WILL FILE A CLAIM WITH THE CLERK OF THE COURT FOR THE JURY FEE COVERING THE HOLIDAY, FEBRUARY 21, 1972, IN ACCORDANCE WITH OUR DECISION IN 45 COMP. GEN. 251.