jurors incurring such charges, upon presentation of a valid parking receipt. The committee finds this proposal justified. Because jurors driving to court are effectively in a travel status, their parking fees should be reimbursed. Since the individual court is in the best position to evaluate local parking problems, the discretion to authorize payments to those jurors presenting valid parking receipts is appropriate. Travel in areas other than the contiguous States of the United States All three bills also treat this item identically. They stipulate that any juror who travels to district court pursuant to a summons in an area outside of the contiguous forty-eight States of the United States shall be paid either the travel expenses available to a juror traveling within the contiguous states or his actual reasonable transportation expenses, subject to the discretion of the district judge. The committee approves this innovation regarding travel expenses. The higher costs of transportation in Hawaii and Alaska are well known. In Hawaii air transportation is usually the only practical mode of transportation from the outlying islands. The committee received for the record a copy of a September 25, 1973. letter from Chief Judge Martin Pence of the United States District Court in Hawaii,37 documenting the fact that jurors traveling to the court from outlying islands were, in 1973, losing between $18.00 and $29.00, depending upon which island was their home, when traveling to court for jury duty. They were then suffering such losses because they were limited to the existing travel allowance of 10 cents per mile. That limitation still prevails. Given the distances involved, and the rapidly increasing costof air transportation since 1973, there is a strong probability that they would continue to suffer such large losses even after an increase in the cents-per-mile travel allowance rate. In Alaska air transportation is often necessitated by the vast distances which must be traveled and is frequently the only sensible means of transportation when those distances must be traveled between periods of heavy weather. The committee finds the vesting of discretion to approve payment of actual expenses, when they exceed ordinary juror travel allowances, in the district judges in these areas to be an appropriate and flexible approach to these unique situations. Subsistence allowances Under all three bills, the existing $16.00 per day maximum amount limitation upon the subsistence allowance, when daily travel between the juror's home and place of service is impractical, would be eliminated. Instead of that statutorily fixed limitation, the Director of the Administrative Office of the U.S. Courts, pursuant to 28 U.S.C. § 604 (a) (7),38 would, from time to time, establish a fixed subsistence allowance covering meals and lodging which would not exceed the maximum allowance for supporting court personnel in travel status. Juror claims for such allowances would not require itemization, and such subsistence allowances would be allowed for the time spent in traveling to and from the place of attendance, if an overnight stay were necessitated enroute. In addition jurors serving in district courts outside the contignous forty-eight States of the United States would be allowed a subsistence allowance at a rate equal to that amount of per diem which 37 See the "Communications" section of this report, infra. Note 36, supra. is paid to court personnel in travel status in those areas where the Director of the Administrative Office of the United States Courts has prescribed increased per diem pursuant to 28 U.S.C. § 604(a) (7). For many of the reasons already stated regarding travel allowances, the committee approves the Judicial Conference proposal on subsistence allowances. As discussed supra, the existing subsistence ceiling of $16.00 per day is simply inadequate in many districts due to the impact of inflation in the past seven years. The per diem subsistence rate for government workers has just recently been raised to $35.00 per day." The committee finds the vesting of authority to establish subsistence rates in the Director of the Administrative Office, pursuant to 28 U.S.C. 604 (a) (7), appropriate for the same reasons it has approved a similar approach to travel allowances; it guarantees necessary flexibility and obviates the need for repeated revision of the statute by congressional action. The special attention given subsistence allowances outside the contiguous forty-eight States is appropriate for reasons very similar to those which justify the special attention given travel allowances for those districts. Hotel and restaurant charges are disproportionately high in Hawaii due to the unusual extent to which resort and tourist activity dominates such enterprises. Alaska is now entering an era when all commercial activity will be dominated by the construction of its new oil pipeline, and shortages of hotel space are expected to inflate hotel charges beyond their already high levels. Sequestered jurors Each of the three bills also provides that in all cases in which sequestration is ordered, the actual cost of subsistence shall be paid by the United States marshal, upon the order of the court, in lieu of the subsistence allowance established by the Director of the Administrative Office of the United States Courts pursuant to 28 U.S.C. § 604 (a) (1).40 The committee approves this proposal. The existing fee structure already provides that sequestered jurors may be reimbursed for the actual cost of sequestration. The new language in the pending bills will clarify the extent to which such reimbursement must be supervised by the Administrative Office and confers upon that office the authority to determine what incidental expenses, such as lunches and occasional trips away from hotels to foster improved morale, may be recognized by the courts. Such flexibility is needed, and the committee finds it as desirable and appropriate in this area as in the areas of travel and subsistence. REPORTS AND RECOMMENDATIONS CONCERNING ECONOMIC HARDSHIPS SUFFERED BY FEDERAL JURORS During the committee's hearings in 1974, Senator Nelson requested that, if the committee found the graduated fee proposal unacceptable." a new subsection (g) be added to § 1871 which would require the Judicial Conference of the United States to periodically report to Congress on the following: (1) The economic hardship which jury service imposes upon citizens. (2) The frequency with which citizens are excused from federal jury service because of economic hardship, and the impact which such excuses have upon the ability of juries to adequately represent a fair cross-section of the community, and (3) Any recommendations the Judicial Conference might have to remedy the economic hardships of federal juror service and to insure that federal juries do adequately represent a cross-section of the community. The purpose of this new section would be to "assure Congressional access to vital information concerning the implementation and effect of the jury fee system." 42 In assessing this proposal, the committee has taken careful notice of both 28 U.S.C. § 1866(d) and the development in recent years of the excellent program for juror utilization which has been developed by the Judicial Conference of the United States and implemented by the Administrative Office of the United States Courts. 28 U.S.C. § 1866 (d) provides that: (d) Whenever a person is disqualified, excused, exempt, or excluded from jury service, the jury commission or clerk shall note in the space provided on his juror qualification form or on the juror's card drawn from the qualified jury wheel the specific reason therefor. The practice mandated by 28 U.S.C. § 1866 (d) has been in effect since the Jury Selection and Service Act of 1968 became effective in December of 1968, and the committee believes that it would be relatively simple for the Administrative Office to compile these statistics for inclusion in the Annual Report issued by the Director of that office, a publication which is routinely furnished to the Congress each year. Additionally, this practice is only one aspect of an elaborate program created by the Judicial Conference's Committee on the Operation of the Jury System in August of 1966.43 In accordance with procedures developed by the Federal Judicial Center, information on juror usage is gathered daily by clerical personnel in the district courts. It is then tabulated weekly, and again monthly, and appropriate reports are forwarded to the Administrative Office of the United States Courts. Much of this information is published annually in a report entitled Juror Utilization in the United States Courts, and all of it is routinely made available to the Judicial Conference's Committee on the Operation of the Jury System. 44 The Committee believes this existing program is adequately overseeing the operation of our federal jury programs. In fact, the Judicial Conference recommendations for revising the jury fee structure, which the committee is largely endorsing in this bill, are a product of that program. Given the diligence with which the Committee on the Operation of the Jury System has acted since 1966, and the extent to which it has broadened its scope of investigation since that time, the committee believes that any appropriate recommendations 42 Hearings-Senate Judiciary Comm, at 13. 43 For a thorough presentation of the works of that Committee to date, see The Jury System in the Federal Courts 1966-1973, West Publishing Company Series on the Federal Jury System, Pamphlet 1 (1973). 44The handbook used by the courts, which explains this information processing program is: "Guidelines for improving Juror Utilization in the United States District Courts", published and distributed by the Federal Judicial Center in October 1972. for congressional action in this area will be made as needed and that no statutory requirement need be enacted at this time. The committee also believes that the Director of the Administrative Office will be guided by the congressional intent expressed in this report. STATEMENT REGARDING A JUROR'S RIGHT TO REEMPLOYMENT THE PROBLEM AND PREVIOUS PROPOSED LEGISLATIVE REMEDIES In 1970 the Department of Justice asked the Judicial Conference's Committee on the Operation of the Jury System to examine the extent to which citizens summoned for jury service in the Federal courts were either actually fired by their employers, because of their absence from work while so serving, or coerced, by the threat of being fired, into petitioning the court for an excuse from jury service. 45 At the direction of that Committee the Administrative Office of the United States Courts surveyed Federal district court clerks and jury commissioners and discovered that the problem existed throughout the nation. As a result, the Judicial Conference, in March of 1971, recommended to the Congress legislation which would have subjected any employer who discharged, or threatened to discharge, an employee. due to that employee's absence from work "in connection with" jury service, to a fine of not more than $1000.00, imprisonment for not more than one year, or both. During subsequent hearings before the House Judiciary Committee, Members, witnesses, and the Department of Justice expressed the opinion that a criminal penalty was "a rather drastic remedy", that convictions might be difficult to obtain, and that a civil remedy would be both more appropriate and more effective." Therefore, in September of 1973, the Judicial Conference recommended to the Congress legislation which would provide a civil, rather than a criminal, penalty.49 S. 3776, 93D CONG., 2D SESS. (1974) On July 18, 1974 Senator Schweiker introduced such legislation as S. 3776.50 Shortly thereafter, the Deputy Director of the Administrative Office of the United States Courts wrote to the Chairman of the Committee, expressing general approval of the bill. In that letter. however, the Deputy Director also expressed the following objections to S. 3776: Two sections of the proposed legislation... deserve comment. [First, this legislation]... requires the district courts to give precedence to the civil actions provided in the bill. See Hearings on H.R. 8829 (and identical bills), H.R. 2589, and H.R. 10689 Before Subcomm. No. 5 of the Committee on the Judiciary of the House of Representatives. 921 Cong., 1st Sess., 44-45 (1971) (hereinafter referred to as Hearings-House Judiciary Comm.). For a detailed presentation of this survey's findings see the testimony of Rexland E. Kirks, Director of the Administrative Office of the U.S. Courts, in Hearings-House Jediciary Comm., at 46-47. 47 See Reports of the Proceedings of the Judicial Conference of the United States, March 15-16, 1971, at 6 48 See Hearings-House Judiciary Comm., at 48, 59-60, 62 and 74. 49 See Reports of the Proceedings of the Judicial Conference of the United States, September 13-14, 1973, at 56. 50 See the "Background" section of this report, supra, and accompanying text. 51 See Letter from William E. Foley to Hon. James O. Eastland in the "Communications" section of this report, infra. This is contrary to the position of the Conference. Second, it When Senator Schweiker decided to propose the substance of S. 3776 as an amendment to S. 3265 in late September of 1974, Senator Burdick brought the Deputy Director's objections to his attention, and the requirement that district courts give precedence to the newlycreated civil causes of action was deleted.52 The Deputy Director's suggestion that damages should be limited to losses suffered during the periods when a juror was not receiving juror fees, however, was not suggested by either Senator Schweiker or Senator Burdick. That suggestion was not accepted because, in reporting S. 3265 to the Senate, the committee had already clearly concluded 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." 53 As altered by the deletion of the precedence requirement for recovery-of-damages causes of action, S. 3776 was submitted as Amendment No. 1944 to S. 3265 on September 30, 1974,5* and agreed to and passed by the Senate on October 2, 1974.55 SECTIONS 3 AND 4 OF S. 539 Now, as sections 3 and 4 of S. 539, the proposals regarding a juror's right to reemployment, which were approved by the Senate in the last Congress, are squarely before the committee for its evaluation. Section 3 of S. 539 adds a new section 1875 to the Jury Selection and Service Act of 1968.56 That new section would require that any employee, other than a temporary worker, applying for reemployment within fifteen days after completing his or her Federal jury service, be rehired at his or her former seniority, status and pay. It would also require that any employee so restored be classified as having been on furlough or leave-of-absence for purposes of insurance and any other employment benefits, and that any such employee could not be discharged without cause for at least one year after returning to work. Section 4 of S. 539 adds a new section 1361 to chapter 85 of title 28 of the United States Code, that chapter which governs Federal district court jurisdiction. This new section would confer upon the district courts original jurisdiction to grant money damages, regardless of the amount in controversy, for any loss of wages or benefits suffered by 39 During floor consideration of his amendment Senator Schweiker explained the deletion as follows: "I have also deleted the specific statutory requirement that Federal courts give precedence to recovery actions brought under this new authority. I am certain that our Federal courts will be sensitive to the need for speedy action on cases brought under my amendment, particularly since the U.S. attorney will be attorney for the plaintiff in these cases. But I agree with Chairman Burdick that the vast proliferation of statutory requirements that our courts expedite particular classes of actions threatens to make all such requirements meaningless; therefore, I have deleted the statutory precedence, . . .' See 120 Cong. Rec.. S.18070 (daily ed., Oct. 2, 1974). S. Rep. No. 93-118, 93d Cong., 2d Sess. (1974), at 4-5. 54 See note 5 supra. 5 See note 6 supra. 50 Act of March 27, 1968, Pub. L. No. 90-274, 82 Stat. 62 (codified at 28 U.S.C. § 1861 et seq.). |