B-119969, JULY 13, 1976, 55 COMP.GEN. 1266

B-119969, JULY 13, 1976, 55 COMP.GEN. 1266

COURTS - JURORS - FEES - GOVERNMENT EMPLOYEES IN STATE COURTS - PRORATED FEES PRINCIPLE OF 53 COMP.GEN. 407 PERMITTING PRO-RATA PAYMENT OF JURY FEES TO EMPLOYEES FOR JURY SERVICE IN FEDERAL COURTS EXTENDING BEYOND SCHEDULED WORKDAY IS EQUALLY APPLICABLE TO JURY DUTY PERFORMED IN STATE COURTS. EMPLOYEES MAY BE PERMITTED TO RETAIN A PRO-RATE PORTION OF FEE FOR JURY SERVICE IN STATE OR MUNICIPAL COURTS EXTENDING BEYOND THEIR SCHEDULED WORKDAY. CONTRARY PRIOR DECISIONS ARE NO LONGER CONTROLLING.

IN THE MATTER OF JURY FEES-- STATE COURTS-- JURY DUTY EXTENDING BEYOND EMPLOYEE'S WORKDAY, JULY 13, 1976:

BY LETTER DATED JANUARY 27, 1976, THE DEPARTMENT OF THE ARMY HAS REQUESTED OUR OPINION REGARDING A REQUEST BY A CIVILIAN EMPLOYEE FOR REFUND OF JURY SERVICE FEES FOR JURY DUTY IN A STATE COURT EXTENDING BEYOND THE EMPLOYEE'S SCHEDULED WORKDAY.

THE RECORD SUBMITTED BY THE ARMY SHOWS THAT THE EMPLOYEE PERFORMED JURY DUTY IN A STATE COURT (THE STATE IS NOT IDENTIFIED) DURING THE MONTHS OF APRIL AND MAY 1974. WITH FEW EXCEPTIONS THE EMPLOYEE'S JURY SERVICE EXTENDED FOR 2 TO 3 HOURS BEYOND THE END OF HIS SCHEDULED WORKDAY AND IN EXCESS OF THE PERIOD OF COURT LEAVE GRANTED UNDER 5 U.S.C. 6322 (1970). THE EMPLOYEE ALSO WORKED IN THE MORNING ON 22 OF THE 24 DAYS ON WHICH HE HAD JURY DUTY. HE HAS REQUESTED REFUND OF THE FEES FOR JURY SERVICE PERFORMED BEYOND HIS SCHEDULED TOUR OF DUTY.

SECTION 5515 OF TITLE 5, U.S. CODE, AS AMENDED, CONCERNING THE CREDITING OF AMOUNTS RECEIVED BY FEDERAL EMPLOYEES FOR JURY OR WITNESS SERVICE IN A STATE OR MUNICIPAL COURT PROVIDES AS FOLLOWS:

AN AMOUNT RECEIVED BY AN EMPLOYEE * * * FOR SERVICE AS A JUROR OR WITNESS DURING A PERIOD FOR WHICH HE IS ENTITLED TO LEAVE UNDER SECTION 6322(A) OF THIS TITLE, OR IS PERFORMING OFFICIAL DUTY UNDER SECTION 6322(B) OF THIS TITLE, SHALL BE CREDITED AGAINST PAY PAYABLE TO HIM BY THE UNITED STATES OR THE DISTRICT OF COLUMBIA WITH RESPECT TO THAT PERIOD.

WE HAVE CONSISTENTLY INTERPRETED THIS PROVISION AS REQUIRING AN EMPLOYEE WHO PERFORMS SUCH DUTY IN A STATE OR MUNICIPAL COURT TO REMIT ALL JURY OR WITNESS FEES TO THE FEDERAL GOVERNMENT, EXCEPT ANY PORTION OF THE AMOUNT PAID THAT WAS INTENDED TO BE REIMBURSEMENT OF TRAVEL EXPENSES. B-119969, SEPTEMBER 14, 1973; 52 COMP.GEN. 325 (1972). HOWEVER, EMPLOYEES HAVE BEEN PERMITTED TO RETAIN ANY EXCESS OF JURY FEES OVER THE AMOUNT OF COMPENSATION DUE.

IN OUR DECISION 53 COMP.GEN. 407 (1973), WE RECONSIDERED PAST INTERPRETATIONS OF THE PARALLEL STATUTE, 5 U.S.C. 5537 (1970), CONCERNING PAYMENTS TO FEDERAL EMPLOYEES OF FEES FOR JURY SERVICE IN COURTS OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA. WE STATED THERE THAT PAST DECISIONS, WHICH HAD PRECLUDED PAYMENT TO THE EMPLOYEE OF ANY PORTION OF THE JURY FEE WHERE THE PERIOD OF JURY SERVICE OVERLAPPED IN ANY PART THE EMPLOYEE'S SCHEDULED WORKDAY, WERE UNDULY RESTRICTIVE, AND WE HELD THAT EMPLOYEES MAY BE PAID A PRO-RATA PORTION OF THE JURY SERVICE FEE FOR JURY DUTY PERFORMED BEYOND THE NORMAL WORKDAY. IN OUR DECISION, B-70371, AUGUST 5, 1975, WE SUGGESTED THAT THE SAME STANDARD MIGHT BE FOR APPLICATION TO EMPLOYEES WHO SERVE AS WITNESSES OR JURORS IN STATE AND MUNICIPAL COURTS, ALTHOUGH THE QUESTION WAS NOT ADDRESSED SPECIFICALLY.

AFTER CAREFUL CONSIDERATION, WE NOW HOLD THAT THE PRINCIPLE ANNOUNCED IN 53 COMP.GEN. 407, SUPRA, REGARDING EMPLOYEES WHO PERFORM JURY SERVICE IN COURTS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA IS EQUALLY FOR APPLICATION TO EMPLOYEES WHO PERFORM JURY OR WITNESS SERVICE IN STATE OR MUNICIPAL COURTS. ACCORDINGLY, EMPLOYEES WHO ARE GRANTED COURT LEAVE UNDER 5 U.S.C. 6322 (1970) AND WHO PERFORM JURY OR WITNESS SERVICE IN A STATE OR MUNICIPAL COURT BEYOND THE END OF THEIR SCHEDULED WORKDAY NOW MAY BE PERMITTED TO RETAIN A PRO-RATA PORTION OF THE FEE FOR SUCH SERVICE. PRIOR DECISIONS INCONSISTENT WITH THIS OPINION ARE TO BE REGARDED AS NO LONGER CONTROLLING.

COMPUTATION OF THE PRO-RATA JURY FEE RETAINABLE BY THE EMPLOYEE SHOULD BE MADE IN ACCORDANCE WITH OUR DECISION B-70371 OF THIS DATE CONCERNING PRORATION OF JURY FEES WHEN FEDERAL EMPLOYEES SERVE IN A FEDERAL COURT. WE HOLD IN THAT DECISION THAT THE JURY FEE MAY BE PRORATED ON THE BASIS OF THE NORMAL 8HOUR WORKDAY, E.G., BY DIVIDING THE TOTAL JURY FEE BY 8 TO ARRIVE AT A CONSTANT HOURLY RATE. THE PORTION OF THE JURY FEE RETAINABLE BY THE EMPLOYEE MAY THEN BE COMPUTED BY MULTIPLYING THE HOURLY RATE BY THE NUMBER OF HOURS OF JURY SERVICE PERFORMED BEYOND THE END OR PRIOR TO THE BEGINNING OF THE EMPLOYEE'S NORMAL WORKDAY. FRACTIONAL HOURS OF 30 MINUTES OR GREATER DURATION ARE TO BE TREATED AS A WHOLE HOUR FOR THE PURPOSES OF THIS COMPUTATION; PERIODS OF LESS THAN ONE-HALF HOUR ARE TO BE EXCLUDED. NO PRORATION IS REQUIRED WHEN THE BEGINNING OF THE EMPLOYEE'S PERIOD OF JURY SERVICE COINCIDES WITH THE END OF THE EMPLOYEE'S NORMAL WORKDAY OR WHEN THE END OF THE EMPLOYEE'S JURY SERVICE COINCIDES WITH THE BEGINNING OF THE EMPLOYEE'S NORMAL WORKDAY; NECESSARY TRAVEL TIME IN SUCH CIRCUMSTANCES SHOULD BE TREATED AS COURT LEAVE.