B-70371, NOV. 16, 1965, 45 COMP. GEN. 251

B-70371, NOV. 16, 1965, 45 COMP. GEN. 251

COURTS - JURORS - FEES - GOVERNMENT EMPLOYEES IN FEDERAL COURTS - NONWORKDAYS A CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT WHO FOR JURY SERVICE PERFORMED IN A UNITED STATES DISTRICT COURT ON NOVEMBER 11, 1964, A GOVERNMENT HOLIDAY, RECEIVED A FEE IN ADDITION TO HIS REGULAR PAY FOR THE DAY MAY RETAIN BOTH, NO LOSS RESULTING TO THE GOVERNMENT ON ACCOUNT OF THE JURY SERVICE THE EMPLOYEE PERFORMED ON THE HOLIDAY HE WAS NOT REQUIRED TO REPORT FOR DUTY TO HIS GOVERNMENT POSITION. 29 COMP. GEN. 391, OVERRULED.

TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, NOVEMBER 16, 1965:

WE ARE IN RECEIPT OF A LETTER FROM MR. JOE M. BEUTELL, JR., 706 CUMBERLAND CIRCLE, N.E., ATLANTA, GEORGIA, REQUESTING OUR OPINION AS TO WHETHER HE IS ENTITLED TO RETAIN THE COMPENSATION (JURY FEE OF $7) RECEIVED BY HIM FOR JURY SERVICE IN THE UNITED STATES DISTRICT COURT, ATLANTA, GEORGIA, ON NOVEMBER 11, 1964, A GOVERNMENT HOLIDAY. MR. BEUTELL IS A GOVERNMENT EMPLOYEE AND ALSO RECEIVED HIS REGULAR PAY FROM HIS AGENCY FOR THAT DAY. HE CLAIMS THAT HE SHOULD RECEIVE THE $7 JUROR'S FEE IN ADDITION TO HIS REGULAR PAY. SINCE THE MATTER IS ONE WHICH WILL AFFECT OTHER GOVERNMENT EMPLOYEES IN SIMILAR SITUATIONS, WE ARE RENDERING OUR DECISION TO YOU IN ORDER THAT IT MAY BE MADE READILY AVAILABLE TO THE APPROPRIATE UNITED STATES COURTS.

THE ACT OF JUNE 29, 1940, 54 STAT. 689, 5 U.S.C. 30N, O, P, PROVIDES AS FOLLOWS:

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.

IN OUR DECISION IN 27 COMP. GEN. 293 WE HELD THAT GOVERNMENT EMPLOYEES SERVING ON STATE COURT JURIES WERE ENTITLED TO RETAIN JUROR'S FEES FOR HOLIDAY SERVICE BECAUSE THERE WAS NO LOSS TO THE GOVERNMENT FOR THE HOLIDAY SERVICE, AND THE FACT THAT SECTION 3 OF THE STATUTE APPEARS TO CONTEMPLATE A CREDITING ONLY OF THE AMOUNT RECEIVED FROM THE STATE ON ACCOUNT OF JURY SERVICE IN A STATE COURT FOR THE PERIOD HE OTHERWISE WOULD BE PERFORMING THE DUTIES OF HIS ORDINARY POSITION. WHILE SECTION 2 OF THE STATUTE DOES NOT HAVE A SPECIFIC REIMBURSEMENT PROVISION SUCH AS THAT CONTAINED IN SECTION 3, ITS PURPOSE APPEARS TO BE THE SAME, I.E., THAT WHERE THE EMPLOYEE GETS THE BENEFIT OF UNDIMINISHED SALARY AND LEAVE DURING ABSENCE FROM HIS DUTIES FOR JURY SERVICE, THE GOVERNMENT IS ENTITLED TO THE BENEFIT OF ANY PER DIEM FEES PAID FOR THAT SERVICE. REIMBURSEMENT AS SUCH IS NECESSARY UNDER SECTION 2 AS NOTHING WOULD BE GAINED BY TRANSFERRING FEES FROM ONE GOVERNMENT INSTRUMENTALITY TO ANOTHER. IN VIEW OF THE SIMILAR OBJECTIVES OF SECTIONS 2 AND 3, WE FEEL THAT THE REASONING LEADING TO OUR DECISION IN 27 COMP. GEN. 293 APPLIES EQUALLY TO THE INSTANT CASE AND THAT IT IS THEREFORE PERMISSIBLE FOR GOVERNMENT EMPLOYEES TO RETAIN JURY FEES RECEIVED FOR HOLIDAY SERVICE IN FEDERAL AS WELL AS IN STATE COURTS.

WE NOTE THAT OUR DECISION OF MARCH 28, 1950, 29 COMP. GEN. 391, WHILE NOT CONCERNED WITH JURY SERVICE ON HOLIDAYS, DID CONCERN A SOMEWHAT SIMILAR SITUATION, NAMELY, THE RIGHT OF A SCHOOL TEACHER IN THE DISTRICT OF COLUMBIA SCHOOLS TO RETAIN JURY FEES FOR SERVICES AS A JUROR IN A FEDERAL COURT DURING A VACATION PERIOD DURING WHICH NO TEACHING SERVICES WERE RENDERED BUT FOR WHICH THE TEACHER RECEIVED REGULAR SALARY. SINCE THAT DECISION HELD THAT JURY FEES COULD NOT BE RETAINED UNDER SUCH CIRCUMSTANCES, IT IS IN CONFLICT WITH THE PRINCIPLE OF OUR DECISION HEREIN AND IS TO BE REGARDED AS NO LONGER CONTROLLING.

A COPY OF THIS DECISION IS BEING SENT TO MR. BEUTELL WITH ADVICE THAT HE IS ENTITLED TO RETAIN THE JURY FEE IN QUESTION.