B-181335, DEC 6, 1974, 54 COMP GEN 472

B-181335, DEC 6, 1974, 54 COMP GEN 472

COURTS - JURORS - FEES - GRAND JURORS - INCREASES - EFFECTIVE DATE FEES OF GRAND JURORS SITTING IN THE JUNE 18, 1973 GRAND JURY IN THE EASTERN DISTRICT OF LOUISIANA AND FEES OF THE JUNE 5, 1972 GRAND JURY SITTING IN WASHINGTON, D.C., MAY BE INCREASED RETROACTIVELY TO THE AMOUNT PROVIDED FOR IN 28 U.S.C. 1871 AT THE DISCRETION OF AND BEGINNING WITH THE DATES DETERMINED BY THE PRESIDING JUDGE, IN ACCORDANCE WITH THE LIMITATIONS IMPOSED BY THE STATUTE. APPROPRIATIONS - FISCAL YEAR - JURY FEES - RETROACTIVE INCREASES RETROACTIVE INCREASED FEES PAYABLE FOR JURY SERVICE AFTER THE 30TH DAY ARE CHARGEABLE TO THE APPROPRIATION FOR THE FISCAL YEAR IN WHICH JURY SERVICE WAS RENDERED.

IN THE MATTER OF GRAND JURY FEES, U.S. DISTRICT COURT FOR DISTRICT OF COLUMBIA, WATERGATE GRAND JURY NO. 1, AND U.S. DISTRICT COURT, EASTERN DISTRICT OF LOUISIANA, DECEMBER 6, 1974:

THIS DECISION IS RENDERED AT THE REQUEST OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS WHICH IS IN DOUBT AS TO THE LEGALITY OF RETROACTIVE APPLICATON OF A PROVISION OF 28 U.S.C. 1871 THAT AUTHORIZES AN INCREASE IN FEES PAID TO JURORS IN UNITED STATES DISTRICT COURTS WHEN THE ATTENDANCE OF SUCH JURORS IS REQUIRED FOR A PERIOD IN EXCESS OF 30 DAYS. THE SECTION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 1871. FEES.

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 OF 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.

JURY FEES *** PROVIDED BY THIS SECTION SHALL BE PAID BY THE UNITED STATES MARSHAL ON THE CERTIFICATE OF THE CLERK OF THE COURT, AND IN THE CASE OF JURY FEES IN EXCESS OF $20 PER DIEM, WHEN ALLOWED AS HEREINABOVE PROVIDED, ON THE CERTIFICATE OF THE TRIAL JUDGE.

THE CIRCUMSTANCES UNDER WHICH THE QUESTION OF PAYMENT OF JURY FEES IN THE CASE OF THE JUNE 5, 1972 GRAND JURY SITTING IN THE DISTRICT OF COLUMBIA (COMMONLY REFERRED TO AS THE WATERGATE GRAND JURY NO. 1) AROSE ARE DESCRIBED AS FOLLOWS IN A LETTER DATED JANUARY 4, 1974, FROM MR. VLADIMIR N. PREGELJ, FOREMAN OF THE JURY TO JUDGE JOHN J. SIRICA:

*** AS YOU KNOW, THIS GRAND JURY WAS SWORN IN AS A REGULAR GRAND JURY ON JUNE 5, 1972, AND WAS TO SERVE ITS NORMAL TOUR OF DUTY THROUGH AUGUST 4, 1972. IT BEGAN HEARING THE WATERGATE CASE ON JUNE 23, 1972, AND HAD HELD, BY THE END OF ITS REGULAR TERM OF SERVICE, TWENTY SESSIONS CONNECTED WITH THAT CASE. THE INVESTIGATION BEING FAR FROM COMPLETED, THE GRAND JURY WAS HELD OVER AND, MOREOVER, AS IS WELL KNOWN, ITS LIFE WAS RECENTLY EXTENDED BY A SPECIAL STATUTE BEYOND THE STATUTORY 18 MONTHS.

THE GRAND JURY COMPLETED ITS THIRTY DAYS OF HEARING THE WATERGATE CASE ON SEPTEMBER 6, 1972, THAT IS A MONTH AFTER IT HAD ALREADY BEEN HELD OVER FROM ITS REGULAR TERM OF SERVICE. SINCE THAT DATE, IT HAD MET 71 MORE TIMES ON THE SAME CASE.

IN SUMMARY, THE QUESTION INVOLVES PAYMENT OF THE ADDITIONAL FEE ALLOWED BY 28 U.S.C. 1871 TO 13 GRAND JURORS FOR A TOTAL OF 1,333 DAYS DURING THE PERIOD AUGUST 7, 1972, THROUGH OCTOBER 29, 1973. WE UNDERSTAND THAT, BEGINNING NOVEMBER 5, 1973, THE FEES WERE INCREASED PROSPECTIVELY BY A DECISION TAKEN THAT DAY BY AN EXECUTIVE SESSION OF THE DISTRICT JUDGES.

THE UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF LOUISIANA HAS ALSO PRESENTED TO THE ADMINISTRATIVE OFFICE VOUCHERS DATED APRIL 8, 1974, FOR PAYMENT OF ADDITIONAL GRAND JURY FEES, IN AN AMOUNT OF $5 DAILY PER JUROR FOR ATTENDANCE IN EXCESS OF 30 DAYS ON DATES DURING THE PERIOD JANUARY 29, 1974, TO APRIL 8, 1974. SUBSEQUENT TO APRIL 8, 1974, THESE GRAND JURORS HAVE BEEN PAID THE ADDITIONAL FEE IN ACCORDANCE WITH AN ORDER OF THAT DATE OF THE PRESIDING JUDGE OF THE COURT WHICH ALSO PROVIDES FOR PAYMENT OF THE ADDITIONAL FEES RETROACTIVELY TO JANUARY 29, 1974, THE 31ST DAY OF SERVICE.

IN THE WATERGATE GRAND JURY CASE, NO ORDER PURPORTING TO PAY THE RETROACTIVE FEES HAS BEEN ISSUED BY THE COURT AND NO VOUCHERS HAVE BEEN SUBMITTED. HOWEVER, THE CLAIM OF THE GRAND JURORS FOR A RETROACTIVE INCREASE IN THEIR FEES HAS BEEN DOCUMENTED BY THE GRAND JURY FOREMAN AND FORWARDED BY THE PRESIDING JUDGE TO THIS OFFICE THROUGH THE ADMINISTRATIVE OFFICE. WE ARE INFORMED THAT VOUCHERS WILL BE PRESENTED IF OUR DECISION IS THAT THE INCREASED FEES MAY BE PAID.

THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS HAS ADVISED THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THAT THE FEES MAY NOT BE ALLOWED RETROACTIVELY ON THE BASIS OF A LINE OF DECISIONS OF THIS OFFICE CITED IN THE SUBMISSION INCLUDING 49 COMP. GEN. 505 (1970); 44 ID. 89 (1964); 35 ID. 148 (1955); 31 ID. 191 (1951); 31 ID. 163 (1951); 28 ID. 732 (1949); 28 ID. 300 (1948); 25 ID. 601 (1946); 10 ID. 514 (1931). AS STATED BY THE ADMINISTRATIVE OFFICE, THESE DECISIONS HAVE HELD CONSISTENTLY THAT SALARIES, WAGES AND RATES OF PER DIEM MAY NOT BE INCREASED RETROACTIVELY BY ADMINISTRATIVE DETERMINATION. THE QUESTION OF THE APPLICATION OF THIS RULE TO FEES OF GRAND JURORS HAS BEEN SUBMITTED FOR OUR REVIEW AND DECISION.

SPECIFICALLY, WE ARE ASKED TO RULE ON THE FOLLOWING QUESTIONS:

1. MAY THE INCREASED FEES ALLOWABLE UNDER 28 U.S.C. 1871 FOR GRAND JURY SERVICES AFTER 30 DAYS BE PAID ON THE BASIS OF A RETROACTIVE CERTIFICATION OF THE PRESIDING JUDGE?

2. IF RETROACTIVE PAYMENT IS PERMISSIBLE, TO WHAT DAY MAY CERTIFICATION APPLY?

3. IF RETROACTIVITY IS PERMISSIBLE, AND PAYMENT INVOLVES FEES PAYABLE IN A PRIOR FISCAL YEAR, ARE APPROPRIATED FUNDS AVAILABLE FOR PAYMENT?

AS NOTED ABOVE, THE VIEW OF THE ADMINISTRATIVE OFFICE THAT THE INCREASED FEES ARE NOT RETROACTIVELY PAYABLE IS BASED ON DECISIONS OF THIS OFFICE DISALLOWING RETROACTIVE INCREASES IN SALARIES, WAGES AND PAYMENTS OF PER DIEM OR OTHER ALLOWANCES IN LIEU OF SUBSISTENCE. THE PROVISION OF THE AFOREMENTIONED STATUTE WITH WHICH WE ARE CONCERNED RELATES TO THE JURY FEES PER SE, WHICH MAY BE INCREASED AFTER THE 30TH DAY OF SERVICE. THUS, IT APPEARS THE VIEW OF THE ADMINISTRATIVE OFFICE IS PREMISED ON A CONCEPT THAT JURY FEES ARE THE EQUIVALENT OF SALARIES AND WAGES WHICH WE HAVE HELD, GENERALLY, MAY NOT BE INCREASED RETROACTIVELY BY ADMINISTRATIVE ACTION, IN THE ABSENCE OF A SPECIFIC STATUORY PROVISION THEREFOR.

ON OCTOBER 2, 1974, THE SENATE OF THE UNITED STATES PASSED S. 3265, 93D CONGRESS, A BILL AMENDING 28 U.S.C. 1871 IN ITS ENTIRETY AND INCREASING THE JURY FEES IN QUESTION HERE. IN CONSIDERING THE LEGISLATION INTRODUCED, THE SENATE JUDICIARY COMMITTEE ALSO HAD FOR CONSIDERATION LEGISLATION PROPOSED BY THE JUDICIAL CONFERENCE OF THE UNITED STATES, WHICH WAS INTRODUCED AS H.R. 14027, 93D CONG., 2D SESS. (1974), IN THE HOUSE OF REPRESENTATIVES. (NO ACTION HAS, TO DATE, BEEN TAKEN ON H.R. 14027.)

IN DISCUSSING ITS APPROACH TO THE AMOUNT WHICH SHOULD BE AUTHORIZED FOR JURY FEES, THE SENATE COMMITTEE STATED IN ITS REPORT ON S. 3265, S. REPORT NO. 1188, 93D CONG., 2D SESS. 4, 5 (1974), THAT THE FIRST PRINCIPLE BY WHICH IT HAD BEEN GUIDED IS THAT -

*** JUROR FEES, OF WHATEVER SPECIFIC NATURE, ARE ONLY INTENDED TO OBVIATE UNDUE FINANCIAL HARDSHIP; THEY ARE NOT INTENDED TO MAKE A JUROR AS FINANCIALLY WHOLE AS HE MIGHT BE IF HE HAD INVESTED THE TIME GIVEN TO JURY SERVICE IN SOME OTHER ENDEAVOR. THIS PRINCIPLE HAS CONSISTENTLY BEEN RECOGNIZED BY THE JUDICIARY'S CHARACTERIZATION OF A JUROR'S FEE AS A "GRATUITY" RATHER THAN AS A "WAGE":

THERE IS A FEE PAID FOR SERVICE OF A JUROR, BUT THIS IS NOT TO BE CONSIDERED AS A WAGE. IT IS MERELY A GRATUITY COVERING THE EXPENSE THAT A JUROR MAY BE PUT TO IN ANSWERING THE CALL. ***

(CITING JOCHEN V. COUNTY OF SAGINAW, 110 N.W. 2D 780, 784 (MICH. 1961.))

SEE, ALSO, SILAGY V. STATE, 253 A. 2D 478 (SUPER. CT. N.J. 1969); HICKS V. GUILFORD COUNTY, 148 S.E.V. 240 (N.C. 1966); BOARD OF COMMISSIONERS OF EAGLE COUNTY ET AL. V. EVANS, 60 P2D 225 (COLO. 1936); AND SEWARD V. COUNTY OF BERNALILLO (DISTRICT COURT), 294 P2D 625 (N.M. 1956).

THE REASONING OF THE SENATE COMMITTEE ON THE NATURE OF JURY FEES IS PERSUASIVE. WE AGREE THAT JURY FEES ARE NOT SALARIES OR WAGES WITHIN THE MEANING OF OUR ABOVE-CITED DECISIONS IN WHICH WE HAVE DISALLOWED RETROACTIVE INCREASES IN COMPENSATION AND ALLOWANCES AS A GENERAL RULE.

EVEN IF JURY FEES WERE TO BE REGARDED AS THE EQUIVALENT OF PAY OR ALLOWANCES, IN OUR DECISION 12 COMP. GEN. 554 (1933) THIS OFFICE HELD THAT JURORS ARE NOT TO BE REGARDED AS OFFICERS OR EMPLOYEES OF THE GOVERNMENT FOR PURPOSES OF REDUCING THEIR FEES PURSUANT TO THE ECONOMY ACT OF JUNE 30, 1932. FOR THIS REASON, OUR PREVIOUSLY-MENTIONED DECISIONS REGARDING RETROACTIVE COMPENSATION ARE NOT APPLICABLE.

EVEN IF JURORS WERE TO BE REGARDED AS FEDERAL EMPLOYEES, THOSE DECISIONS WOULD NOT APPLY BECAUSE THE EXCEPTION FOR INSTANCES IN WHICH CLEAR STATUTORY AUTHORITY EXISTS FOR RETROACTIVE PAYMENTS IS PRESENT IN THIS SITUATION. SECTION 1871 PROVIDES FOR THE INCREASE IN JUROR'S FEES AFTER 30 DAYS TO BE ALLOWED IN THE DISCRETION OF THE PRESIDING JUDGE. TAKING INTO CONSIDERATION THE AUTHORITY GENERALLY ACCORDED A PRESIDING JUDGE OVER THE ADMINISTRATION OF THE COURT, WE BELIEVE THIS AUTHORITY EXTENDS TO A DETERMINATION AS TO WHETHER THE INCREASED FEE IS PAYABLE AND THE DATE UPON WHICH IT IS ALLOWABLE. A JUDGE IS WITHIN HIS JURISDICTION IN MAKING ORDERS RELATIVE TO PAYMENT OF JURORS, 50 C.J.S. JURIES 207D (1947). SEE, ALSO, MEREDITH V. SAMPSON, 126 S.W. 2D 124, 125 (KY. 1939). IN THIS CONNECTION, WE NOTE THAT JUDGES OFTEN ARE UNABLE TO ACCURATELY PREDICT THE DURATION A JURY WILL BE REQUIRED TO HEAR A CASE. THESE JUDGES MAY NOT FEEL INCREASED JURY FEES ARE WARRANTED WHEN JURORS ARE REQUIRED TO ATTEND ONLY A FEW DAYS IN EXCESS OF THE STATUTORY 30-DAY PERIOD. HOWEVER, AS THE CASE CONTINUES, THEY MAY FEEL THAT JURORS SHOULD BE COMPENSATED RETROACTIVELY FOR HARDSHIP SUFFERED AS A RESULT OF THE EXTENDED DURATION. ON THE OTHER HAND, WE THINK IT IS UNREALISTIC TO INSIST THAT JUDGES EXERCISE THEIR DISCRETION TO AWARD INCREASED JURY FEES ON THE 31ST DAY OF HEARINGS MERELY TO PRESERVE THEIR ABILITY TO COMPENSATE JURORS FOR HARDSHIP ENCOUNTERED AS A RESULT OF DRAWN OUT PROCEEDINGS. THUS, WE THINK THE STATUTE, IN GRANTING JUDGES DISCRETION TO INCREASE JURY FEES FOR EACH DAY IN EXCESS OF 30 THAT JURORS ARE REQUIRED TO ATTEND, ALSO CONTEMPLATED THAT SUCH DISCRETION WOULD HAVE TO BE EXERCISED ON A RETROACTIVE BASIS.

FINALLY, THE ORIGINAL PURPOSE OF THE LAW FROM WHICH SECTION 1871 IS DERIVED WAS TO IMPROVE THE QUALITY OF FEDERAL JURIES BY INCREASING FEES AND TRAVEL EXPENSES AND PROVIDING FOR PAYMENT OF SUBSISTENCE EXPENSES. IMPORTANT FEATURE OF THE LAW WAS THE PROVISION FOR INCREASING THE JURY FEES IN THE DISCRETION AND UPON THE CERTIFICATION OF THE PRESIDING JUDGE AFTER 30 DAYS OF ATTENDANCE. SEE TESTIMONY OF JUDGE JOHN C. KNOX, CHAIRMAN OF THE COMMITTEE ON SELECTION OF JURORS OF THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES OF THE UNITED STATES, HEARINGS BEFORE THE SENATE JUDICIARY COMMITTEE ON S. 19, 80TH CONGRESS, APRIL 23, 1947, PRIOR TO ENACTMENT OF THE ACT OF JUNE 25, 1948, CH. 652, 62 STAT. 1016. SEE, WITH RESPECT TO THE INCREASE PROPOSED FOR PAYMENT AFTER 30 DAYS ATTENDANCE, THE DISCUSSION ON PAGE 32 OF THE HEARINGS. ALTHOUGH THE TESTIMONY OF WITNESSES AT THE SENATE HEARING, SUPRA, WAS DIRECTED MAINLY TO THE CIRCUMSTANCES OF PETIT JURIES, SECTION 1871 OF TITLE 28, CODIFIED BY THE ACT OF JUNE 25, 1948, CH. 646, 62 STAT. 869, 953, WHICH WAS AMENDED BY THE LATER ACT, PROVIDED FOR PAYMENT OF FEES TO GRAND AND PETIT JURORS. NOTHING IN THE LEGISLATIVE HISTORY OF THE PROVISION SUGGESTS THAT GRAND JURORS WERE TO BE COMPENSATED DIFFERENTLY FROM PETIT JURORS.

OUR REVIEW OF THE PURPOSES OF THE ORIGINAL LEGISLATION - TO PROMOTE THE PUBLIC INTEREST BY IMPROVING THE JURY SYSTEM - AND OF THE FACTS AND CIRCUMSTANCES OF THE GRAND JURY FEES IN THE CASES PRESENTED LEAD US TO THE CONCLUSION THAT WE WOULD NOT OBJECT TO RETROACTIVE PAYMENT OF THE INCREASED FEES. HENCE, QUESTION 1, SUPRA, IS ANSWERED IN THE AFFIRMATIVE.

WITH REGARD TO QUESTION 2, SUPRA, CONCERNING THE DATE UPON WHICH THE INCREASE MAY BE MADE RETROACTIVELY EFFECTIVE, WE ARE OF THE OPINION THAT CERTIFICATION BY THE PRESIDING JUDGE MAY BE MADE AT ANY TIME AFTER THE 31ST DAY JURORS ATTENDED THE PROCEEDINGS FOR AS MANY DAYS OF SERVICE OVER 30 AS HE FEELS ARE APPROPRIATE UNDER THE PARTICULAR CIRCUMSTANCES.

IN RESPONSE TO QUESTION 3, SUPRA, REGARDING THE AVAILABILITY OF PRIOR YEAR FUNDS FOR RETROACTIVE CERTIFICATION AND PAYMENT, THE PRINCIPLES STATED IN 50 COMP. GEN. 589 (1971), CITED IN THE SUBMISSION ARE FOR APPLICATION. AS STATED IN THE DECISION AT PAGE 591, "A CLAIM AGAINST AN ANNUAL APPROPRIATION WHEN OTHERWISE PROPER IS CHARGEABLE TO THE APPROPRIATION FOR THE FISCAL YEAR IN WHICH THE OBLIGATION WAS INCURRED." THE OBLIGATION IS INCURRED AT THE TIME JURY SERVICE IS PERFORMED, BUT THE AMOUNT OF THE OBLIGATION, WHETHER $20 OR $25 PER DAY, IS NOT CERTAIN UNTIL SUCH TIME AS THE PRESIDING JUDGE IN THE EXERCISE OF HIS DISCRETION RETROACTIVELY CERTIFIES THE PAYMENT OF INCREASED JURY FEES. ACCORDINGLY, PRIOR YEAR FUNDS MAY BE UTILIZED IF AVAILABLE.