Call It "Extreme" Jury Duty?

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.

Hall v United States 11-5119

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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  1. Retired LR says:

    Who are the management incompetents on this one? They need to go.

    • pepsi says:

       I agree with this question, I guarantee, they knew her personal situation, but decided to reassign
      her anyway. If she would have refused the assignment, they would have removed her.

  2. greenid1 says:

    Being summoned for jury duty is different from volunteering for additional time.  I believe that the Navy made a fair and equitable decision. It makes me wonder how concerned she was about her mother’s ‘poor health’.

  3. ww says:

    I thought most people did everything in their power to avoid jury duty.  But there’s always the occaisional oddball.

  4. Shark says:

    Ms. Smith, you misrepresent the findings of the appellate court by your alarmist contention in your concluding paragraph that this ruling creates the risk of “…virtually unlimited paid leave as long as employees are willing to become more or less permanent jurors…”  Not true.  The case did not involve “unlimited” grand jury service, as California law limits the service to two terms of one year each, as disclosed on page 4 of the opinion.  Is two years too long?  If so, Congress could change the laws/regulations.  Do other states allow longer periods of service on grand juries?  I have no information on that issue, but it merits research.  If so, the laws/regulaiton probably should be changed, in order to ensure that federal employees do not encumber positions (particularly during a time when so many people are unemployed) when they are not performing the duties of those positions. 

  5. overpaidCS says:

    Just your typical CS I’m suprised that she hasn’t wanted a step increase and a promotion

  6. guest says:

    So much for morals, ethic’s and character for military personnel!!

  7. guest says:

    Wow.  She must really be proud.  Probably thinks she is so smooth.  Jury pay for the average citizen in 10 dollars a day in my area.  A new low in federal service.  If she really wants to do this on a full time basis cause it makes her such a good person, she should resign from the Navy first. I got ZERO respect for people like her. 

  8. CALLALILLIE says:

    Seriously????? You can volunteer for Grand Jury duty for years and your agency has to pay you? Will that employee get appraisal? a within grade increase? Who is running this show? That is the dumbest thing I’ve ever heard and offensive to those of us who go to work for the agencies who actually pay our salaries.

  9. Lucita Knight says:

    To Management Attorney:  How play the card with the military?  One doesn’t pull military duty unless he/she has been given written orders to do so; I should know; my husband received official orders when assigned to a new permanent duty station (PCS) or temporary duty station (TDY); the military has its “wish” list where the military person would prefer to be assigned, and that works most of the time, but not all the time.  I have the distinct impression that the military leaves a very bad taste in your mouth.  I know that there are “slackers” in the military; fortunately, they are far too few.  God bless the U.S. military; as Tom Brokaw stated in his “Greatest Generation” book, if we didn’t have the U.S. military win World War II, we would be speaking Japanese or German!

    • Management Attorney says:

      Please spare the moralizing and reducing me to a cultural stereotype.  I base my comment that some employees will dodge unpleasant work situations by having an ally in the military call them to active duty on first hand observation.   I’ve personally dealt with these situations.  There is no animosity toward the military nor was any stated or implied except in your head.   Rah, rah, sis boom bah!

      • Lucita Knight says:

        Then you should have explained yourself better.  How childish!!!

      • overpaidCS says:

        Yea just being an attorney is as low as one can go on the morality scale

      • pepsi says:

         Yep and if she would have complied with management directives, and then filed a appeal with the MSPB, the MSPB would dismissed her appeal for lack of jurisdiction. Stating that it was voluntary on her part. In the eyes of MSPB, management do not have to benefit themselves.  It’s okay for management to do something that makes no sense to do.

  10. Nrroldo says:

    Kidding aside, I should no longer be amazed at how wrong a group of judges can often be.  Every time I think I have hit the end of the road someone paves a few more miles.

  11. Nrroldo says:

    Guess I know what I’m doing when I get close to retiring!

  12. OldRet says:

    This kind of reminds me of the union president at our agancy who keeps winning re-election and has been president for 10 years. He is on the agency payroll of one of the departments gettting paid a GS 11 salary but hasn’t worked in that department for 10 years.

  13. P Curley says:

    I never heard of a period of jury duty, even grand jury, which required an employee to be completely absent for an entire year. Grand jury duty here in Conn does last an extended period of time but not 5 days a week, week in and week out. Also, there has to be regulations considering absence for volunteered jury duty. Maybe one per year, as, if an employee did not volunteer, he/she could be subpoenaed once anyway. But no more than that. Here in Conn, if you call the night before and your name is not on the list, your duty is over for a year. If you DO go in, you are OK for 3 years. It is one day or one trial. If you are not selected for a trial on that one day, you are done. Anything else, as per the employee in this article, is pure shenagians and has to be put a stop to.

  14. Lucita Knight says:

    I agree with Milly S Smith; it appears as thouogh she found a legal  way to remain in California and to continue to look after her mother who is in poor health, and Hall, not wanting to continue to remain in California without pay, went through the process to make the system work for her.  However, I would think that the fact that she volunteered for the jury duty would have nullified her keeping her employment with the Navy and being paid; she volunteered, she wasn’t mandated or required; but then she was summoned, which would have her required to serve.  OPM needs to get its act together and supplement its regulations with new directive so that government employees wouldn’t be taking advantage of this loophole, if you can call that a loophole.  I am surprise that the appeals court would have agreed with her.

  15. Skisok says:

    I’ve always sai that the pool of jurors should come from the retired folks.  This would cause less disruption in the work place.

    • P Curley says:

      Sorry, can’t be done, as a person has a right to a trail by jury of his/her peers, which requires a good cross section of the public at large.

    • OldRet says:

      Old retired folks have a myriad of health issues so they couldn’t be depended upon. In fact, where I live you are excused from jury duty once you reach 70.

  16. fwbsec06 says:

    The article says she “volunteered” to serve on the Grand Jury but . . .

    Did she get paid for her Grand Jury duty?  Perhaps by the State if not by the County/City?

    Just curious — because I remember being called for jury duty but never “serving,” merely reporting until excused as a potential juror by the judge (probably because of the branch of government I was employed by).  I had marked my time records as 2 hours “vacation” for that day and still had to re-pay (wrote my personal check to the U.S. Government) the $20.00 I received from my County for “reporting for jury duty.”

    • P Curley says:

      You should have only been required to turn over your jury duty pay if the time was charged to court leave, instead of vacation/annual leave.

      • fwbsec06 says:

        Thank you, P Curley.  That’s the way I saw it, but . . . . 

        Oh well, it was years ago, but this article certainly did bring it to mind again.

        Funny in a way because years later my boss (who wasn’t subject to the Leave Act) actually served as a juror on a week-long criminal trial.  I’m guessing he didn’t have to report (repay) the US Gov’t for that week away from his job.

  17. Management Attorney says:

    This card is also played with military duty.

  18. Bancroftfisher says:

    No matter how much praise you would give the individual for being creative, she is a person lacking in ethics, morals or scrupals. She is no less a criminal as the individuals she profess to pass judgement on as a juror; foreperson no less. She is stealing from hard working taxpayers.

  19. Milly S Smith says:

    As a “Taxpayer” I agree with the Navy and the Court decision that says she is not entitled to her pay from her Federal Position as she is clearly not working at it and in my opnion volunterred just so she would not have to move from California and report to DC to continue her employeement there.  It is my tax dollars that pay her salarly and although I am not saying that “Grand Jury Duty’ is not a valid or necessary and vital to our Justice system, had she just been “Summoned” and did not Volunteer of her own free will, then I would agree with her.  I really do not see where the Justice system expects anyone whether it is the Government and or Private industry to pay someone’s salary for 2 years while that person serves as a jurior…….

  20. grannybunny says:

    The take-away from this story is that OPM needs to go ahead and exercise its authority to issue some regulations on this problem.

    • steve5656546346 says:

      But what would the unions say?  

      They might not be pleased, and they give LOTS of money to political campaigns…and votes…and even political cover…  Not good people to upset when you are a Democrat running for re-election.  (Unions almost never support Republicans anyway, so Republicans have nothing to loose.)

      • grannybunny says:

        The unions are free to publicly comment when the proposed regs are published in the Federal Register, just like anyone else.  OPM — of course — does not receive political contributions, or votes.  At any rate, this situation is so rare, that it’s highly-unlikely that many will weigh in either way.

        • HRguru says:

          It was rare because it probably seemed absurd to most people to try it. Now they can.

          • grannybunny says:

            That’s why OPM needs to “stick a fork in it” and declare it “done.”  We’ve actually had at least one similar situation — of which I am aware – in the Postal Service.

  21. PhoenixWoman says:

    Maybe if private-sector employers weren’t so stingy with their employees’ time, our courts systems wouldn’t be so desperate for warm bodies to serve on grand juries.

    • Danl_P says:

      What a jerk! Private sector employers employ people because they are needed to run the business, not because they fill the right square and add to the party coffers.

    • overpaidCS says:

      It just reinforces the point that CS are under worked so they aren’t missed

  22. HRguru says:

    Place this at the feet of OPM.  They have a manual on different types of leave that was inherited from a different agency, but which has not been updated in over a decade.  I called them to get an explanation on a different court leave issue only to have the OPM rep declare that they had not made a policy interpretation on the issue I was presenting.  She then said she could help adjudicate the issue if I told her more of the facts.  “How can you adjudicate an issue when you have not made the proper policy determinations first?”

     “(Crickets.)”

    • Bill T. says:

      Make it up as you go along?

      The unavailability of written guidelines on many issues that I’m at least ostensibly required to conform troubles me.

    • Danl_P says:

      OPM is full of clowns like Phoenix Woman. Nearly as bad as HHS/OCR.

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