Here is a recent case that could be troubling for government employers while at the same time it shows some real creativity on the part of an employee who perhaps did not want to move from California to Washington, DC. (Dawn Hall v. United States, C.A.F.C. No. 2011-5119 (4/30/12))
According to the court’s opinion, Hall had been an NCIS engineer for some 18 years when she agreed to the geographic transfer from California to D.C. She asked for and was granted a reprieve from the actual move into the next calendar year due to her mom’s poor health.
About four months before the transfer was to finally happen, Hall filled out paperwork and volunteered to serve as a grand juror for the local Ventura County court. She was summoned to appear just short of the date of her pending move to D.C. and was picked to serve on the grand jury for the next twelve months. She then informed her boss that she would be on court leave for a year. Although “troubled” by this, the Navy paid her while she spent the next year serving on the grand jury. (Opinion pp. 2-3)
So, what is an agency employer to do when it needs an employee to report for work but is concerned she may continue in grand jury status indefinitely? Several weeks before the end of the grand jury term, the Navy ordered Hall in writing to report to D.C. two weeks after expiration of the one-year jury service and “not to seek or accept extension of [her] grand jury duties.” (p. 3)
Hall apparently had already discussed with local court officials staying on another year and serving as foreman. Sure enough, she got her summons and was sworn in for year two. Again, she informed the Navy and expected to continue in a pay status. This time, her agency put her on AWOL and withheld pay. Hall appealed to the Merit Systems Protection Board and also sent a letter to the Office of Personnel Management asking, can they do that? (pp. 3-4) (The opinion points out that the law empowers OPM to put out some regulations on the fine points of the court leave requirement but apparently it has not seen fit to do so.)
Navy removed Hall for failing to report to D.C. as ordered, failing to disobey the order not to extend her grand jury duties, and for the AWOL. (The MSPB case is separate from the current court opinion and is on hold while the basis for her firing goes back and forth between OPM and MSPB.)
Hall sued in Claims Court for back pay for the pre-removal AWOL. The Claims Court ruled for the Government and Hall has appealed that decision. (p. 6)
The question before the Claims Court and now the appeals court is whether court pay is legally required when an employee volunteers for jury duty as opposed to being summoned for it. The Claims Court said no, citing “the absurd result of potentially limitless service on voluntary juries….” a result that it called unreasonable. (p. 7)
Hall took her case to the appeals court, arguing that this is an improper interpretation of the law. She maintains all that is needed to trigger the requirement for paid court leave is a summons even if voluntarily sought by the employee and even if it means years of paid court leave.
The appeals court agrees with Hall’s interpretation and has reversed the Claims Court’s decision, sending it back for another go. The opinion finds the law is “clear on its face and entitles a grand juror to court leave when summoned, regardless of whether the grand juror volunteered to be summoned.” (p. 10) The court brushes aside the Government’s argument and points to the fact that “sitting on a grand jury is a valuable public service not a ‘vacation from work at taxpayer expense….” (p. 13)
This case opens up an interesting avenue for getting virtually unlimited paid leave as long as employees are willing to become more or less permanent jurors rather than report to their government job. It is hard to imagine any state or local court that would not jump at the chance to have public employees fill their grand jury pools while collecting their federal salaries.
© 2014 FedSmith Inc. All rights reserved. This copyrighted article may not be reproduced without express written consent of FedSmith Inc.