HALL v. USA

Filing 31

granting 19 Motion for Summary Judgment; denying 21 Motion for Summary Judgment; PUBLISHED OPINION. The Clerk is directed to enter judgment. Signed by Sr. Judge Bohdan A. Futey. (mp1) Copy to parties.

In the United States Court of Federal Claims
No. 09-239C
(Filed June 21, 2011)
************************
DAWN HALL,
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*
Plaintiff,
*
*
v.
*
*
THE UNITED STATES,
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*
Defendant.
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Summary Judgment, RCFC 56(c);
Court Leave, 5 U.S.C. § 6322(a);
Statutory Interpretation; Plain
Language; Absurdity Doctrine;
Legislative History to Clarify
Congressional Intent; Motion
to Dismiss, RCFC 12(b)(1);
Exclusive MSPB Jurisdiction;
Constitutional Claims.

Richard A. Regnier, Camarillo, CA, attorney of record for Plaintiff, and
Georgianna Regnier.
Elizabeth Anne Speck, Department of Justice, Washington D.C., with
whom was Assistant Attorney General Tony West, for Defendant. Jeanne E.
Davidson, Director, and Franklin E. White, Jr., Assistant Director.

OPINION AND ORDER
Futey, Judge.
Before the Court is a dispute over the extent of court leave to which
certain federal employees are entitled. Under the federal court leave statute,
qualifying employees who are “summoned . . . by a court . . . to serve” as jurors
are entitled to paid leave for the duration of their service. 5 U.S.C. § 6322(a)
(2006). Plaintiff, Dawn Hall, claims entitlement to such leave for service on a
year-long panel of the Ventura County Grand Jury (“the Grand Jury”) as a juror, a
position for which she had applied and been selected. The government asserts
that section 6322(a) only covers compulsory jury service.
On March 14, 2011, Hall filed a Motion For Summary Judgment (“Pl.’s
Mot.”), and on the same day the government filed a Motion For Summary
Judgment And Motion To Dismiss In Part (“Def.’s Mot.”). The government filed
an Opposition To Plaintiff’s Motion For Summary Judgment on April 8, 2011
(“Def.’s Opp’n”), and Hall filed a Memorandum Of Points And Authorities In
Opposition To Defendant’s Motion For Summary Judgment And Motion To
Dismiss In Part (“Pl.’s Opp’n”) on April 11, 2011. On April 25, 2011, Hall filed

a Reply Memorandum In Support Of Plaintiff’s Motion For Summary Judgment
(“Pl.’s Reply”), and the government filed a Reply Brief In Support Of Its Motion
For Summary Judgment (“Def.’s Reply”) on the same day. At Hall’s request, oral
argument was held in Washington, D.C., on May 25, 2011.
I.

Background

Prior to her removal, Hall worked for the Naval Criminal Investigative
Service (“NCIS”) as a Computer Engineer in Ventura County, California. In June
2002, she agreed to transfer to Washington, D.C., effective December 2002. Her
supervisor, Claude Baldwin, allowed her to delay the transfer until July 2003 due
to her mother’s poor health. Baldwin reminded Hall in a May 28, 2003 email that
she would need “to report for work on Monday, 14JUL03, to the Code 20
Department at NCISHQ Washington Naval Yard” and asked her to notify him
immediately if she had any “questions regarding . . . the date of your permanent
transfer/arrival to Washington, DC.” Def.’s App. in Supp. Mot. Summ. J. & Mot.
Dismiss (“Def.’s Mot. App.”) 41. In a June 4, 2003 email, Hall responded to
Baldwin, “I am planning on best, optimistic case to start my move the first week
of July[.]” Def.’s Mot. App. 45.
Earlier that spring, in March 2003, Hall had applied to serve on a yearlong panel of the Ventura County Grand Jury. The application process began
when she filled out a Prospective Grand Jury Nominee Questionnaire and
submitted it to the Superior Court of California, County of Ventura. Since she
had applied, the court sent her a Summons To Attend Court As Part Of A Grand
Jury Panel on June 20, 2003. The summons was signed by the court’s Jury
Commissioner, and read:
YOU ARE HEREBY SUMMONED BY THE
COURT to appear at Superior Court of California,
County of Ventura [on] Tuesday, July 1, 2003 at
3:00 p.m. to attend the Superior Court as part of the
Grand Jury Panel, from which 19 names will be
drawn to serve as grand jurors on the 2003-2004
Ventura County Grand Jury. Failure to appear in
response to this Summons willfully or without
reasonable cause, may subject you to a fine not
exceeding Fifty Dollars ($50.00), or to personal
attachments compelling your attendance.
Pl.’s Resp. Def.’s Mot. Dismiss Ex. 1A. The actual panel of a Grand Jury is
composed both of those who are randomly selected from the pool of applicants, as
well as a number of holdovers from the prior year. These 19 jurors do not, like
trial juries, decide guilt or innocence, but instead perform primarily investigative
functions. At the end of its year-long term, the Grand Jury compiles a report of its
activities. See CAL. PENAL CODE § 933 (West 2003) (requiring each grand jury to
2

submit a final report). The panels that Hall served on prepared reports on health
care, elder abuse, jail closures, and more. See Reports For Fiscal Year 2003–
2004,
COUNTY
OF
VENTURA
GRAND
JURY,
available
at
http://portal.countyofventura.org/portal/page/portal/Grand_Jury/Reports/Archived
_Reports_2000-2005/TAB4579515 (last visited June 15, 2011); Reports for
Fiscal Year 2004–2005, COUNTY OF VENTURA GRAND JURY, available at
http://portal.countyofventura.org/portal/page/portal/Grand_Jury/Reports/Archived
_Reports_2000-2005/TAB4579509 (last visited June 15, 2011).
After she received the summons, Hall informed NCIS that she would need
court leave. On June 27, 2003, Hall wrote Baldwin to request leave for “Jury
Duty” on Tuesday, July 1, 2003. After appearing at court on that day and being
selected to serve, Hall wrote Baldwin, “I was selected and sworn in for the
Ventura County Grand Jury today. Starting today, 01JUL03, I will be on court
leave until 01JUL04. I will provide a confirmation letter from the Grand Jury
when it is available.” Def.’s Mot. App. 115.
NCIS quickly let Hall know it was displeased with her decision to serve
on the Grand Jury. Baldwin wrote Hall on July 11, 2003 and told her he was
“troubled” by her volunteering for a position on the Grand Jury and posed a
number of questions about the Grand Jury, to which Hall did not respond. Id. at
120. Later that month, on July 30, Louis Beyer, the Assistant Director for
Administration at NCIS, wrote Judge Bruce Clark, who presided over the Grand
Jury, and requested that Hall be released from service. Judge Clark replied to
NCIS that he would not release Hall “against her expressed desire to continue her
service,” but he also wrote, “[S]ince Grand Jury service is completely voluntary,
please be assured that the court will approve any request by Mrs. Hall to resign
from her duties on the Grand Jury.” Id. at 58. Judge Clark also personally told
Hall that he would “honor” a resignation request. Id. at 16.
Despite its misgivings over her Grand Jury service, NCIS paid Hall her
full salary during the 2003–04 term of the Grand Jury. Near the end of that term,
Deputy Assistant Director Joseph Vann, who had replaced Baldwin as Hall’s
supervisor, wrote Hall on May 26, 2004 and ordered her to report for duty in
Washington, D.C., no later than July 14, 2004. According to the letter, Hall was
“directed not to seek or accept extension of [her] grand jury duties.” Id. at 60.
By the time of Vann’s order, however, Hall had already begun plans to
serve a second year on the Grand Jury. Hall spoke with the current Grand Jury
foreman and Judge Clark in the Spring of 2004 about serving as foreman of the
2004–05 Grand Jury panel. Hall testified at a deposition, “The judge asked me if
I would serve as foreman the following year, and I had the opportunity to say no.”
Id. at 17. She, however, decided to again volunteer for the Grand Jury, and
received another Summons To Attend Court As Part Of A Grand Jury panel on
June 21, 2004. After receiving the second summons, Hall contacted Vann on
June 28, 2004 to inform him that she would serve “a final year on the Ventura
3

County Grand Jury beginning on July 1, 2004 and ending on June 30, 2005.” Id.
at 67.
Since Hall did not report for duty as ordered, NCIS placed her on absent
without leave (“AWOL”) status and eventually removed her. Vann informed her
on October 18, 2004 that she would be marked as AWOL and not paid as of July
14, 2004. Vann also wrote that he would recommend Hall’s removal, which he
did on November 12, 2004. A Notice of Proposed Removal was issued on
February 17, 2005 and rested on three charges: failure to report for duty by July
14, 2004; refusal to obey the order requiring Hall to refrain from another term of
Grand Jury service; and being AWOL since July 14, 2004. Although Hall
contested her removal, a final decision was issued on June 22, 2005, and her
removal became effective on June 29, 2005.
Hall has challenged this removal before both the Merit Systems Protection
Board (“MSPB”) and the Office of Personnel Management (“OPM”). She
initially appealed the proposed removal to the MSPB in early 2005. The MSPB
dismissed this appeal for lack of jurisdiction on February 7, 2005, since she had
not yet been removed. On July 13, 2005, Hall filed another appeal with the
MSPB. This appeal was dismissed at her request on September 9, 2005, since
Hall intended to seek an OPM determination of whether or not she was entitled to
court leave. On January 12, 2006, OPM found that section 6322(a) does not
cover voluntary service on a grand jury, and denied Hall’s claim to court leave.
Hall filed the pending suit in the United States Court of Federal Claims on
April 20, 2009. The government moved to dismiss the case on June 19, 2009
under Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of
Federal Claims (“RCFC”), and the Court granted that motion on September 10,
2009. The Court held that it lacked jurisdiction to consider Hall’s claims for back
pay and other relief because they fell under the jurisdiction of the MSPB, and the
Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978),
precludes this Court from exercising jurisdiction over claims for which the MSPB
has jurisdiction. Hall v. United States, 89 Fed. Cl. 102, 109 (2009). Hall
appealed to the United States Court of Appeals for the Federal Circuit, which
reversed and remanded the case on September 1, 2010. Hall v. United States, 617
F.3d 1313, 1318 (2010). The Federal Circuit held that this Court does have
jurisdiction over Hall’s “pre-removal claim for back pay,” id. at 1317, and
remanded for a determination of whether “Hall was entitled to paid leave under
section 6322(a).” Id. at 1318.
II.

Discussion

Following remand, the parties conducted discovery and then filed the
pending dispositive motions on March 14, 2011. Both parties move for summary
judgment under RCFC 56(c) on the issue of court leave entitlement, and the

4

government additionally has moved to dismiss under RCFC 12(b)(1) Hall’s
claims for ancillary relief and Constitutional violations.
A.

Entitlement to Court Leave Under Section 6322(a)

The parties’ cross-motions for summary judgment address whether or not
Hall was due paid court leave for her service on the 2004–05 Grand Jury. 1 At the
heart of the parties’ dispute is the determination of whether the federal court leave
statute, 5 U.S.C. § 6322(a), covers service as a grand juror, when a person
voluntarily applies for that position.
1.

Standard of Review

Summary judgment is appropriate “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law.” RCFC 56(c)(1); see also Consolidation Coal Co. v. United States, 615
F.3d 1378, 1380 (Fed. Cir. 2010). A material fact is one that “might affect the
outcome of the suit,” and a dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the facts, “all
justifiable inferences are to be drawn” in favor of the party opposing summary
judgment. Id. at 255. Once the movant has shown that no genuine issue of
material fact exists, the party opposing summary judgment must demonstrate that
such an issue does, in fact, exist. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). To establish a genuine issue of material fact, a party “must point to an
evidentiary conflict created on the record; mere denials or conclusory statements
are insufficient.” SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107,
1116 (Fed. Cir. 1985). If the party opposing fails to make this showing, entry of
summary judgment is “mandate[d].” Celotex, 477 U.S. at 322.
2.

The Plain Language of Section 6322(a)

When interpreting a statute, a court must “start[] with the plain language.”
Barela v. Shinseki, 584 F.3d 1379, 1382 (Fed. Cir. 2009). Statutes are not,
however, interpreted in a vacuum, and a court “must consider not only the bare
meaning of each word but also the placement and purpose of the language within
the statutory scheme.” Id. at 1383. A statute’s meaning, regardless of whether
the language is “plain or not, thus depends on context.” Id.

1

As noted above, the government paid Hall for her service on the 2003–04 Grand
Jury. Hall was determined to be AWOL and placed in a non-paid status as of July
14, 2004, shortly after she began her term on the 2004–05 Grand Jury.
5

In relevant part, section 6322(a) provides:
(a) An employee . . . is entitled to leave, without loss of, or
reduction in, pay, leave to which he otherwise is entitled, credit
for time or service, or performance or efficiency rating, during
a period of absence with respect to which he is summoned, in
connection with a judicial proceeding, by a court or authority
responsible for the conduct of that proceeding, to serve—
(1) as a juror; or
(2) . . . as a witness on behalf of any party in connection
with any judicial proceeding to which the United States,
the District of Columbia, or a State or local government
is a party;
. . . For the purpose of this subsection, “judicial proceeding”
means any action, suit, or other judicial proceeding, including
any condemnation, preliminary, informational, or other
proceeding of a judicial nature, but does not include an
administrative proceeding.
5 U.S.C. § 6322(a). The statute also allows OPM to prescribe regulations to
administer the section, but OPM has not promulgated any regulations.
According to Hall, the meaning of section 6322(a) is clear and covers her
leave: as long as a covered employee “is summoned . . . by a court . . . to
serve . . . as a juror,” then that employee must receive paid court leave. Id. In this
case, Hall was an “employee” within the coverage of section 6322(a), received a
Summons To Attend Court As Part Of A Grand Jury Panel on June 21, 2004, and
was selected to be part of the Grand Jury. Since she received this summons, Hall
contends that her leave should be covered by section 6322(a).
The government, on the other hand, argues that the section leaves
undefined a key word: “summoned.” Black’s Law Dictionary defines “summon”
as “[t]o command (a person) by service of a summons to appear in court,” and
defines “summons” as a “notice requiring a person to appear in court as a juror or
witness.” BLACK’S LAW DICTIONARY 1574 (9th ed. 2009). The government cites
to a number of similar general dictionary definitions. See Def.’s Mot. 16.
Generalizing these definitions, the government argues that volunteering and
requesting to be a grand juror is distinct from a situation in which one is
commanded or required to make a court appearance.
The difficulty with the government’s interpretation is that the statute only
requires that a person be “summoned . . . by a court.” Whether or not Hall
engineered the receipt of her summons, she did receive a “Summons To Attend
Court.” This summons required her “to attend the Superior Court as part of the
6

Grand Jury Panel,” and threatened with a $50 fine if she failed to attend. A
command by a court to attend court, at the threat of a fine, would seem to fall
within common definitions of the word “summoned.” Thus, the bare text of the
statute appears to support Hall’s entitlement to court leave. As noted above,
however, interpretation of a statute does not end after considering a context-free
“bare meaning.” Barela, 584 F.3d at 1383.
3.

The Statutory Context of Section 6322(a)

Section 6322(a) provides court leave for both jury service and witness
service, and uses the same operative language to do so. If an employee is
“summoned . . . by a court . . . to serve” either under (a)(1) as a “juror,” or under
(a)(2) as a “witness,” then that employee is entitled to court leave. 5 U.S.C. §
6322(a). As discussed below, the legislative history behind both (a)(1) and (a)(2)
shows a concern with relieving the burdens of compulsory court attendance. It is
thus proper to interpret these two provisions in pari materia, since “courts should
interpret statutes with similar language that generally address the same subject
matter together, as if they were one law.” Strategic Hous. Fin. Corp. of Travis
County v. United States, 608 F.3d 1317, 1330 (Fed. Cir. 2010) (internal
quotations removed); see also Turtle Island Restoration Network v. Evans, 284
F.3d 1282, 1292 (Fed. Cir. 2002) (declining to interpret sections of the same law
in pari materia when Congress may have had differing motivations for those
sections).
The government also argues that section 6322(a) should be interpreted in
pari materia with a later section of Title V of the United States Code, but those
two sections cover different subject matters. The later section, 5 U.S.C. §
7106(a), outlines management rights in the federal labor system. In relevant part,
section 7106(a) states that “nothing in this chapter shall affect the authority of any
management official of any agency . . . in accordance with applicable laws . . . to
assign work.” 5 U.S.C. § 7106(a) (2006). The government follows the reasoning
of OPM and argues that section 7106(a) would be rendered null if an employee
could, as in this case, ignore a direct order to not volunteer for a second term of
jury service. This is not, according to the government, a “harmonious[]”
interpretation of the two sections. Sullivan v. Finkelstein, 496 U.S. 617, 632
(1990) (Scalia, J., concurring).
The government’s argument is unavailing for three reasons. First, the
plain text of section 7106(a) clearly does not apply to section 6322(a), since
section 7106(a) only covers matters “in this chapter,” and section 6322(a) is in a
different chapter of Title V. 5 U.S.C. § 7106(a). Second, section 7106(a)
specifies that management must act “in accordance with applicable laws.” Id. If,
as Hall argues, section 6322(a) entitles her to court leave, then management
would have no right under section 7106(a) to order Hall to not serve on the Grand
Jury. The question of whether or not Hall is entitled to court leave under section
6322(a) is a necessary predicate for determining the scope of section 7106(a).
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Third and finally, the government and OPM have taken section 7106(a) out of
context. That provision is part of a series of statutes that comprise the Federal
Service Labor-Management Relations Act, 5 U.S.C. §§ 7101–35 (2006), and
govern the interaction of labor and management in collective bargaining. It has
little to do with the extent of court leave to which Hall is entitled.
4.

Judicial and Administrative Interpretation of Section
6322(a)

Apart from OPM’s earlier opinion on Hall’s entitlement, no administrative
body or court has confronted the precise question of this case, and it is an issue of
first impression in this Court. The Court of Appeals for the Federal Circuit made
no comment on the merits of Hall’s section 6322(a) claim in its opinion in this
case, but only addressed this Court’s jurisdiction to hear that claim.
Administrative materials that reference section 6322(a) often describe that
section as allowing court leave when an employee is called for “jury duty” or
“jury service.” See, e.g., INTERNAL REVENUE SERV., TIME & LEAVE HANDBOOK
99 (“It is the civil responsibility of all IRS employees to respond to calls for jury
and
other
court
services.”),
available
at
http://nteu222.org/Documents/TimeLeaveHB.pdf; U.S. DEP’T OF STATE, FOREIGN
AFFAIRS MANUAL VOL. 3—PERSONNEL 1 (“In view of the importance of trial by
jury . . . [the State Department] will not ask that their employees be excused from
jury duty . . . . An employee who is under proper summons from a State or
Federal court to serve on a jury must be granted court leave[.]”), available at
http://www.state.gov/documents/organization/85087.pdf. These phrases connote
obligation, and Black’s Law Dictionary similarly describes “jury duty” as an
“obligation to serve on a jury.” BLACK’S LAW DICTIONARY 935 (9th ed. 2009).
No administrative materials appear to address the question of whether jury duty
includes service in a position for which one voluntarily applies.
Once the obligation of jury duty attaches, the GAO has held that an
employee is under the jurisdiction of the court, and need not seek a release from
jury duty. In an early case, the GAO found that an employee is entitled to court
leave for the “entire period” of court service, regardless of how many hours or
days he must serve. Matter of Leaves of Absence, Jury Service, 20 Comp. Gen.
131 (1940). In a later case, the GAO held that an employee need not seek an
excuse from jury duty, once called for it. There, an employee lived in Virginia but
maintained a residence in New Jersey, and was summoned to serve as a juror in
New Jersey. Matter of C. Robert Curran, 64 Comp. Gen. 851 (1985). His
employing agency denied him court leave, since he could have told the court that
he lived in Virginia and been excused from jury duty. Id. at 852. The GAO held
that an employee is entitled to leave when “he is (1) summoned, (2) in connection
with a judicial proceeding by a court, (3) to serve as a juror” and that an employee
who meets those requirements is entitled to leave “regardless of whether he may
be excused from the jury duty because of the distance he must travel or for some
8

other reason.” Id. at 853. In both opinions, the GAO found that once a proper
summons had attached, court leave was guaranteed.
The GAO has not addressed the issue of whether section 6322(a) covers
“summons” that stem from an employee applying for jury service, but the GAO
has found that other “summons” fall outside the scope of section 6322(a).
According to the GAO, section 6322(a) does not extend to employees who are
plaintiffs and testify as witnesses on their own behalf, Matter of Wilma Pasake,
59 Comp. Gen. 290 (1980), employees summoned as witnesses in cases where
they are the defendant, Matter of Entitlement of Employee-Defendant to Court
Leave, 62 Comp. Gen. 87 (1982), or employees summoned as witnesses in
juvenile court proceedings where they are essentially a party to those proceedings.
Matter of Court Leave, B-214719, 1984 WL 46229 (Comp. Gen. June 25, 1984).
In each of these cases, the GAO found that the employees were not entitled to
court leave, even though they had been summoned as witnesses. Essentially, the
GAO read in an exception to section 6322(a)(2)’s witness leave: if an employee is
a party to a case, he or she may not make use of the witness leave provision.
5.

Skidmore Deference and OPM’s Opinion

At Hall’s request, OPM considered whether or not she was entitled to
court leave, and found she was not. The government urges the Court to consider
this informal opinion, contained in a letter to Hall, as persuasive authority, under
Skidmore v. Swift & Co. 323 U.S. 134 (1944). In United States v. Mead Corp.,
the Supreme Court recognized that agency interpretations of statutes that fall
outside the zone of Chevron deference may nevertheless receive some deference
under the pre-Chevron standards of Skidmore. 533 U.S. 218, 234–35 (2001).
Here, as the government admits, Def.’s Reply 11, OPM’s opinion clearly does not
warrant Chevron deference, since it is “an interpretation contained in an opinion
letter, not one arrived at after, for example, a formal adjudication or notice-andcomment rulemaking.” Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000).
The weight of deference under Skidmore varies widely with the circumstances,
and the Federal Circuit has noted that a court should “defer to an agency
interpretation of the statute that it administers if the agency has conducted a
careful analysis of the statutory issue, if the agency’s position has been consistent
and reflects agency-wide policy, and if the agency’s position constitutes a
reasonable conclusion as to the proper construction of the statute.” Cathedral
Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1366 (Fed. Cir. 2005).
The government, here, points to OPM’s “substantial expertise” with the federal
personnel system, Def.’s Reply 11, and to its “careful analysis” of section
6322(a). Id. at 12.
While the Court agrees that OPM’s opinion letter contains a careful
analysis of the statutory question, the Court is not persuaded that the letter merits
much deference under Skidmore. Unlike cases such as Cathedral Candle Co.,
OPM has not maintained a longstanding interpretation of section 6322(a). See
9

Cathedral Candle Co., 400 F.3d at 1367 (noting that the agency’s “interpretation
was contemporaneous with the enactment of the [relevant statute] and has been
adhered to consistently by the agency since that time. It is not a position
formulated belatedly in response to litigation in this case[.]”). Furthermore, the
opinion letter in this case “was made at a low level within the agency” and was
not appealable, within OPM. Id. The Court thus will not defer to the informal
OPM letter’s interpretation of this issue of first impression.
6.

The Absurdity Doctrine and Legislative History of Section
6322(a)

Although statutory interpretation begins with the “plain text,” a court turns
to “the traditional tools of statutory construction, e.g., legislative history,” if the
intent and meaning of a statute are not clear from its plain text. Grapevine
Imports, Ltd. v. United States, 636 F.3d 1368, 1376 (Fed. Cir. 2011). Intent is
not derived merely from the bare text, but also from the “structure of the statute.”
Xianli Zhang v. United States, Nos. 2010-5026, 2010-5027, 2011 WL 1321187,
at *5 (Fed. Cir. Apr. 6, 2011). A court must “give effect to the unambiguously
expressed intent of Congress,” but can resort to legislative history to clarify that
intent. Id.
Furthermore, when determining whether or not to consider legislative
history, a court should attempt to avoid “‘absurd results.’” Id. (quoting United
States v. Turkette, 452 U.S. 576, 580 (1981)). When “the literal reading of a
statutory term would ‘compel an odd result,’” a court “must search for other
evidence of congressional intent to lend the term its proper scope.” Public
Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 454 (1989) (quoting Green v.
Bock Laundry Mach. Co., 490 U.S. 504, 509 (1989)); see also Ambassador Div.
of Florsheim Shoe v. United States, 748 F.2d 1560, 1563 (Fed. Cir. 1984) (noting
that at times a “cold textual analysis . . . produces absurd results, results that were
not and could not have been within the contemplation of Congress”). In its
current state, the absurdity doctrine applies:
[W]here the supposed absurdity does not arise from
the judge thinking himself wiser than the legislator,
or better able to draft workable laws, where the true
intent of Congress is clearly articulable from the
whole body of laws of which the provision to be
construed is a part, or the legislative history, and
where the literally stated intent is broader than the
true intent.
Ambassador, 748 F.2d at 1564–65; see also Church of the Holy Trinity v. United
States, 143 U.S. 457, 459 (1892) (“[F]requently words of general meaning are
used in a statute, words broad enough to include an act in question, and yet a
consideration of the whole legislation . . . or of the absurd results which follow
10

from giving such broad meaning to the words, makes it unreasonable to believe
that the legislator intended to include the particular act.”).
In this case, the bare text of section 6322(a) contains overbroad language
that could produce an absurd result, such as allowing an employee unlimited court
leave. As discussed above, the GAO has attempted to avoid overly broad
readings of section 6322(a)’s witness provisions and construed the section to not
provide leave for employees who are parties to a case. The Court thus considers it
appropriate to examine the legislative history of section 6322(a) to aid its
determination of whether the legislative intent of section 6322(a) would cover
Hall’s service on the Grand Jury. Two primary points in the legislative history
are relevant to that question: the enactment in 1940 of the original court leave
statute, and the expansion of the court leave entitlement in 1970.
The original version of the court leave statute used different wording than
the modern entitlement, and those words, as well as the history of the original
version, show a concern with compulsory jury service. Enacted in 1940, that first
version provided paid leave for federal employees “who may be called upon for
jury service in any State court or court of the United States.” Act of June 29,
1940, Pub. L. No. 76-676, 54 Stat. 689 (1940). The phrase employed here—“who
may be called upon”—is passive, and implies that someone is calling an
employee to service. In an accompanying committee report, the House
Committee on Civil Service stated that the “purpose of the bill is to provide leave
of absence to employees . . . for jury service . . . without loss of compensation or
leave.” H.R. REP. NO. 76-1959, at 2 (1940). The Committee had asked for the
views of the United States Civil Service Commission, and its president endorsed
the bill, stating that, “Although employees of the Government are in a number of
jurisdictions exempt from jury service, the Commission believes that in those
States where jury duty is compulsory employees of the government should be
permitted to serve without loss of compensation or leave[.]” Id. at 2 (emphasis
added). This original statute thus only was meant to apply to those “called upon”
to serve. If an employee lived in a jurisdiction where he was exempt from service
and had volunteered to serve, that likely would not have fallen within the
legislative intent of the leave statute.
When Congress amended the statute in 1970 to include the modern
statutory language as well as expanded coverage for witness leave, the concern
with compulsory service remained. The language of the original statute was
replaced with the modern language—“summoned . . . by a court . . . to serve”—
and applied to both jurors and witnesses. S. REP. NO. 91-1371, at 16 (1970).
According to an accompanying committee report from the Senate Committee on
the Judiciary, the “major purpose of this legislation is to alleviate financial
hardship now imposed on employees of the United States and of the District of
Columbia resulting from their service as a witness [or] a juror.” Id. at 4. The
report notes,

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It should be emphasized that an employee would be
entitled to witness leave only if he is summoned by
the court or authority responsible for the conduct of
the proceeding. The employee would not be
entitled to leave if he just volunteered; he must be
summoned. . . . What is intended is that the
summons be an official request, invitation, or call,
evidenced by an official writing.
Id. at 8 (emphasis added). At a hearing on an earlier version of the bill, members
of the House of Representatives expressed a concern over “volunteering” as a
witness in order to “get out of work for a few days,” Hearing Before the
Subcomm. on Manpower and Civil Serv. of the Comm. on Post Office and Civil
Serv. on H.R. 10247, a Bill to Amend Title 5, United States Code, to Grant Court
Leave to Employees of the United States and the District of Columbia When
Called as Witnesses in Certain Judicial Proceedings on Behalf of State and Local
Governments, 91st Cong. 11 (1970) (statement of Rep. David Henderson, Vice
Chair, H. Comm. on Post Office and Civil Serv.), and over using witness service
as a “subterfuge for missing work.” Id. at 13 (statement of Rep. Richard White,
Member, H. Comm. on Post Office and Civil Serv.). Compulsory service thus
remained at the core of section 6322(a)’s coverage; the legislature wanted to
avoid any hardship that might be “imposed” upon federal employees when they
were required to serve as jurors or witnesses.
The broad reading of section 6322(a) urged by Hall does not comport with
the expressed legislative intent of that section. Under Hall’s interpretation, a
federal employee could serve for an unlimited period of time on a voluntary grand
jury, as long as a “summons” was received. For instance, if the Ventura County
Grand Jury did not have a two-term limit for its grand jurors, then Hall, under her
interpretation, could still be serving on that jury, while drawing a federal
paycheck. See CAL. PENAL CODE § 901 (allowing a grand juror to serve two
terms). As discussed above, however, the expressed Congressional intent behind
section 6322(a) was “alleviat[ing] financial hardship . . . imposed on employees”
as a result of “their service as a witness [or] a juror.” S. REP. NO. 91-1371, at 4
(1970). No financial hardship was imposed upon Hall; she applied for a position
on the Grand Jury, served for a year, and then voluntarily accepted a second term
on that Grand Jury, after being given a chance to turn down a second year of
service. In light of the legislative history, the absurd result of potentially limitless
service on voluntary juries, and GAO’s limitations imposed on section 6322(a)’s
witness leave, the Court finds it is “unreasonable to believe that the legislat[ure]
intended to include” service such as Hall’s. Church of the Holy Trinity, 143 U.S.
at 459. Summary judgment is therefore appropriate in favor of the government. 2
2

Hall has pointed out that some states allow individual jurors to voluntarily place
their names on the jury rolls for trial juries. See, e.g., N.Y. JUDICIARY LAW § 506
(McKinney 2011) (including “persons who have volunteered to serve as jurors”
on the selection list for jurors). The process of volunteering to be on the rolls for
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B.

Defendant’s Motion To Dismiss

In addition to moving for summary judgment on Hall’s pre-removal
entitlements under section 6322(a), the government has moved to dismiss under
RCFC 12(b)(1) Hall’s post-removal claims for relief, and renewed its 12(b)(1)
motion to dismiss Hall’s Constitutional claims.
1.

Standard of Review

The government has moved to dismiss for lack of subject matter
jurisdiction under RCFC 12(b)(1). The Tucker Act sets the “jurisdictional reach”
of the Court of Federal Claims. Rick’s Mushroom Serv., Inc. v. United States,
521 F.3d 1338, 1343 (Fed. Cir. 2008). That Act waives the sovereign immunity
of the federal government for certain claims, including those founded upon Acts
of Congress. 28 U.S.C. § 1491(a)(1) (2006); see also Sanders v. United States,
252 F.3d 1329, 1334 (Fed. Cir. 2001). Since the Tucker Act does not itself create
any substantive rights, plaintiffs must identify a substantive right that entitles
them to relief. See United States v. Testan, 424 U.S. 392, 398 (1976); Jan’s
Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1309 (Fed. Cir. 2008). Plaintiffs
must establish by a preponderance of the evidence facts sufficient to invoke the
court’s jurisdiction. See M. Maropakis Carpentry, Inc. v. United States, 609
F.3d 1323, 1327 (Fed. Cir. 2010).
2.

Ancillary Relief and Constitutional Claims

Hall asks for relief related to her removal that is beyond the jurisdiction of
the Court. In addition to her claim for pre-removal pay and court leave, which the
Federal Circuit ordered this Court to address on its merits, Hall seeks “post
removal back pay, interest, retirement, and other benefits, as well as
reinstatement.” Pl.’s Mot. 12.
Defendant responds that the Federal Circuit’s opinion made clear that
these post-removal claims are beyond the jurisdiction of this Court. According to
the Federal Circuit, “[T]he ancillary claims for reinstatement and post-removal
back pay were predicated on the removal action. As to those ancillary claims, we
agree with the Court of Federal Claims that it lacked jurisdiction.” Hall, 617
F.3d at 1317 (emphasis added). Hall calls this statement mere dictum, and not
binding on this Court, while the government argues that lack of jurisdiction has
been established and is the law of the case. See Intergraph Corp. v. Intel Corp.,
253 F.3d 695, 697 (Fed. Cir. 2001) (“The doctrine of law of the case generally
bars retrial of issues that were previously resolved.”).

a trial jury along with hundreds of thousands of other potential jurors is far
removed from applying for a small number of spots on a grand jury, especially
after being given the “opportunity to say no.” Def.’s Mot. App. 17.
13

Regardless of whether or not the Federal Circuit’s statement was dictum, it
was correct. The Court of Federal Claims does not have jurisdiction over those
personnel actions that are covered by the Civil Service Reform Act (“CSRA”).
United States v. Fausto, 484 U.S. 439, 449 (1988). When the CSRA covers a
personnel action, the MSPB has exclusive jurisdiction to hear a challenge to that
action. See Romero v. United States, 38 F.3d 1204, 1211 (Fed. Cir. 1994).
“‘[M]ajor adverse personnel actions,’” such as removals, are covered by the
CSRA. Hall, 617 F.3d at 1316 (citing King v. United States, 71 Fed. Cl. 766, 771
(2008)). Hall attempts to sidestep this limitation by citing to a number of cases
involving military personnel. See Pl.’s Opp’n 23. The MSPB, however, does not
have jurisdiction over military pay cases, and those cases are thus irrelevant to
Hall’s request for ancillary relief in this case. As the Federal Circuit noted, the
MSPB, not the Court of Federal Claims, could hear an appeal of Hall’s removal
action. Hall, 617 F.3d at 1316 (noting that “the removal action . . . is a matter
committed to the exclusive jurisdiction of the MSPB”). Since the MSPB has
jurisdiction over the removal, this Court lacks it.
Hall argues that entitlement to court leave would negate her removal and
thus allow this Court to exercise jurisdiction, but the Federal Circuit’s opinion is
quite clear to the contrary. According to Hall, if the Court finds entitlement to
leave, then “that negates the preremoval charges that were brought, basically
AWOL. And once those are gone, there’s no removal . . . . because the removal
couldn’t have anything to be based on[.]” Summ. J. Arg. Tr. 20:11-15, May 25,
2011. As the Federal Circuit pointed out, however, the claim to court leave and
the removal are not “inextricably intertwined.” Hall, 617 F.3d at 1316 (internal
quotations removed). That court noted that “the MSPB could deny reinstatement
even if it found the AWOL charge to be erroneous, e.g., on the ground that her
conduct in dealing with her supervisors regarding the AWOL issue was
inappropriate.” Id. (emphasis added). The Court thus disagrees with Hall that her
removal would cease to exist, if this Court were to have granted her court leave.
Hall also asks this Court to hear her claims for a variety of Constitutional
violations, including violations of the Due Process Clauses of the Fifth and
Fourteenth Amendments, as well as the Fourteenth Amendment’s Equal
Protection Clause. As the Court noted in its earlier Opinion in this case, a
Constitutional provision must mandate the payment of money in order for it to fall
within this Court’s jurisdiction. United States v. Testan, 424 U.S. 392, 400
(1976); see also United States v. White Mountain Apache Tribe, 537 U.S. 465,
473 (2003) (noting that a provision must be “reasonably amenable to the reading
that it mandates a right of recovery in damages”). In its earlier Opinion in this
case, the Court found that it lacked jurisdiction to hear claims for violations of the
Fifth Amendment’s Due Process Clause and of the Fourteenth Amendment’s
Equal Protection Clause. Hall, 89 Fed. Cl. at 110. The Federal Circuit’s ruling
did not mention these claims, and the Court’s Opinion as to them stands. Absent
extraordinary circumstances, relitigation is barred by the law of the case. See
Fed. Air Marshals v. United States, 84 Fed. Cl. 585, 589–90 (2008).
14

Furthermore, the Due Process Clause of the Fourteenth Amendment does not
mandate the payment of money and is not a basis for jurisdiction. LeBlanc v.
United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995).
Since this Court lacks jurisdiction over Hall’s post-removal and
Constitutional claims, dismissal under RCFC 12(b)(1) is appropriate.
III.

Conclusion

Section 6322(a) allows court leave for an employee who is summoned to
serve on a jury, and Congress passed that statute to “alleviate financial
hardship . . . imposed on employees” as a result of jury service. S. REP. NO. 911371, at 4 (1970). Although Hall received a summons, the Court holds that her
service on the 2004–05 Grand Jury is not covered by section 6322(a). Congress
did not intend for section 6322(a) to provide court leave to an employee who
voluntarily accepts a year-long extension of grand jury service, after already
applying for and serving on a year-long grand jury. Defendant’s Motion For
Summary Judgment And Motion To Dismiss In Part is therefore GRANTED, and
Plaintiff’s Motion For Summary Judgment is DENIED. The Clerk is directed to
act accordingly.
No costs.
s/Bohdan A. Futey______
BOHDAN A. FUTEY
Judge

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