appointed eligibility for subsequent transfer, promotion, or reinstatement to a position in the classified civil service, but such employee does not thereby acquire a status protecting him from removal from such excepted position and, while holding such excepted position, the employee is not entitled to the benefits of the Civil Service Retirement Act.

When formal action looking to appointment could have been taken but was not taken by the appointing officer, either from a register of eligibles or by transfer or reinstatement, the Civil Service Commission should, at a later date, take action whereby an employee is accorded a competitive classified status.

No distinction should be made between a position in the Executive civil service of the United States which is excepted from the operation of the Civil Service Act and Rules by specific statute of Congress, and a position in a corporate body such as the Reconstruction Finance Corporation and the Merchant Fleet Corporation.

DEPARTMENT OF JUSTICE,

June 10, 1932.

Sir: I have the honor to refer to your letter of April 1, 1932, enclosing a letter of March 31, 1932, from the Civil Service Commission, and requesting me to give consideration to the following questions propounded therein:

"1. Whether appointments by the Secretary of Agriculture under the provisions of the Reconstruction Finance Corporation Act may be made without regard to the pro visions of the Civil Service Act and Rules;

"2. Whether the words "excepted position" appearing in the final clause of paragraph 3 of Civil Service Rule II may be construed by the Commission as including positions excepted by law from the operation of the Civil Service Act and Rules;

"3. Whether, in the event that an affirmative answer is given to Question 2 above, the Commission may hold that the filling of such an excepted position in any manner in which competitive positions may be filled accords to the employee (a) A status for promotion, transfer, or future reinstate

ment to a competitive classified position, but no status protecting him against arbitrary removal; and/or

(b) A status under the retirement act;

"4. Whether, in any class of cases herein considered, when formal action looking to appointment could have been taken but was not by an appointing officer, either from a register

of eligibles or by transfer or reinstatement, the Commission may, at a later date, take action whereby an employee is accorded a competitive classified status for future action;

“5. Whether in the consideration of these questions there should be any distinction made between a position in the Executive civil service of the United States which is excepted from the operation of the Civil Service Act and Rules by specific statute of Congress, and a position in a corporate body such as the Reconstruction Finance Corporation and the Merchant Fleet Corporation."

It appears from the Commission's letter that the Secretary of Agriculture has expressed a desire to make some appointments under the provisions of section 2 of the Reconstruction Finance Corporation Act of January 22, 1932 (47 Stat. 5), in accordance with the Civil Service Act and Rules; and the question has arisen whether the Secretary is required to observe the provisions of the Civil Service Act and Rules in making all appointments under the provisions of the Reconstruction Finance Corporation Act. This question was considered by the Attorney General in an opinion to the Secretary of Agriculture dated February 27, 1932. (37 Op. 1.) In that opinion the Secretary was advised that as under section 4 of the Reconstruction Finance Corporation Act of January 22, 1932, the Corporation is authorized to select and fix the compensation of its personnel without regard to the provisions of law applicable to the employment and compensation of officers and employees of the United States, and as the funds allocated to the Secretary under the provisions of section 2 of the Act, for agricultural loans, continue to be capital of the Reconstruction Finance Corporation, "the Secretary of Agriculture in his capacity as the representative of the Corporation with respect to agricultural loans is to be subject to no greater restrictions than the Corporation itself." Therefore, "The Secretary of Agriculture has authority to appoint and fix compensation of persons employed by him in carrying out the provisions of the Act, without regard to other laws applicable to the employment and compensation of officers and employees of the United States, provided such persons are not otherwise employed in the service of the United States." Hence, with this limitation, the answer to the first question is that the Secretary of Agriculture

may make appointments under the provisions of section 2 of the Reconstruction Finance Corporation Act, without regard to the provisions of the Civil Service Act and Rules.

The four remaining questions involve the recent action of the Civil Service Commission in reversing a long existing practice under paragraph 3 of Civil Service Rule II, which provides:

"Appointments to the excepted positions named in Schedule A of these rules may be made without examination or upon noncompetitive examination; but the proper appointing officer may fill an excepted position as competitive positions are filled, in which case the person appointed will receive all the rights of a competitive employee."

The Commission had held for many years that the words of the above quoted paragraph "but the proper appointing officer may fill an excepted position as competitive positions are filled, in which case the person appointed will receive all the rights of a competitive employee," included not only appointees excepted under Schedule A of the Civil Service Rules but also those excepted under Schedule B thereof and those excepted by specific provision of law; and that persons appointed to such positions through the regular procedure of the Civil Service Act and Rules would become elegible for subsequent transfer, promotion or reinstatement to a position in the classified civil service.

For some years prior to the general revision of the Civil Service Rules in 1903, the positions in the Executive Civil Service which could be filled without examination were listed as Rule VI; and positions subject to non-competitive examinations were listed in paragraph 3 of Civil Service Rule IV. In the general revision of the Rules in 1903, the list of positions which could be filled without examination was withdrawn from the Rules under a specific number and attached as a supplement to the Rules under the heading of "Schedule A." Reference to appointments to the excepted positions named in Schedule A of the Rules was carried in paragraph 3 of Rule II now under consideration. Positions subject to non-competitive examinations were continued by the general revision in 1903 as a part of paragraph 2 of Civil Service Rule III; and so continued until the Executive Order of March 23, 1910, when they were withdrawn from

this paragraph of the Rules and embodied in Schedule B. At least as early as April 26, 1915, the Commission held that the words "excepted position" in the latter half of paragraph 3 of Rule II applied to positions excepted by law, and as early as July 1, 1920, that such words applied to positions in a Government-owned Corporation such as the Merchant Fleet Corporation.

However, in August 1931, the Commission reversed this long-continued practice, in so far as it applied to positions excepted by law and to positions in Government-owned corporations.

The Commission's action was based upon its interpretation of an opinion of Acting Attorney General Frierson of July 19, 1920 (32 Op. 273). Some of the language of the opinion supports the construction placed upon it by the Commission. (See Civil Service Act and Rules, amended to March 15, 1932, p. 15, note 5.) The Acting Attorney General did not consider the question whether persons appointed as a result of competitive examination to positions excepted by statute acquired or retained eligibility for reinstatement, transfer, or promotion to other positions within the competitive classified service. He held only that such persons were not entitled, while occupying such positions, to the benefits of the Retirement Act because they were not "employees in the classified service of the United States." I find in the opinion no ruling that such persons may not, under Rule 2, paragraph 3, acquire or retain eligibility for transfer, promotion, or reinstatement to a position in the classifled civil service while serving under an appointment to a position excepted by law from the requirements of the Civil Service Act.

The Commission's interpretation of paragraph 3, Rule 2, which prevailed for so many years was not, in my opinion, inconsistent with the ruling of the Acting Attorney General. This clearly appears in the following excerpt from the Commission's letter to you:

"The Commission in its interpretation of this section of the rules as applicable to positions excepted by law, had not held that the rights of the appointing officer under whom such employee served were restricted or curtailed as regards the position, but only that the employee appointed through

procedure under the Civil Service Act and Rules acquired certain rights for reinstatement, transfer, or promotion to other positions which were within the competitive classified service."

Hence, it would seem to follow that the Commission was not justified in reversing its long-continued practice, unless the President is without authority to provide that an appointment officer may fill an excepted-by-law position from a civil service register of eligibles, and that if the appointment officer chooses to do so, the person so appointed shall, by reason of such appointment, become eligible for subsequent transfer, promotion, or reinstatement to a position in the classified civil service.

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Section 1753 of the Revised Statutes and the Civil Service Act of January 16, 1883 (c. 27, 22 Stat. 403, 406; 5 U. S. C. 631-633; 17 Op. 621, 623; 28 id. 112, 115), authorize the President to make regulations for the admission of persons into the civil service of the United States, to ascertain the fitness of candidates, and to prescribe (with the assistance of the Civil Service Commission) rules in accordance with stated fundamental principles, to make such rules effective as nearly as the conditions of good administration will warrant," and to make modifications and prescribe exceptions. For at least sixteen years (from April 1915 to August 1931) the President and the Commission construed these statutes as authorizing the President to promulgate and to include in paragraph 3 of Rule II, positions excepted by law, and for at least eleven years (from July 1920 to August 1931), positions in the Merchant Fleet Corporation. Viewing this practice in the light of the rule, that the interpretation of a statute by the department charged with its administration is entitled to the highest respect, and, if acted upon for a number of years, will not be disturbed by the courts unless clearly erroneous (36 Op. 510, 513), it is my opinion that while Congress may except a position from the operation of the Civil Service Act and Rules because it desires the right of the appointment officer, in making appointments to or removals from such position, to be unrestricted, the President is clearly empowered to provide that the appointment officer may fill such position through the