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 In the general revision of the Rules in 1903, the list of positions which could be filled without examination was withdrawn from the Rules under a specific number and attached as a supplement to the Rules under the heading of "Schedule A." Reference to appointments to the excepted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of paragraph 2 of Civil Service Rule III; and so continued until the Executive Order of March 23, 1910, when they were withdrawn from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

regular procedure of the Civil Service Act and Rules, 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. In so providing the President is merely preserving the rights of such person obtained through competitive examination. by declaring such person eligible for subsequent transfer. promotion, or reinstatement to a position in the classified civil service, and such declaration does not in any manner whatsoever affect or restrict the powers of the appointment officer in making appointments to or removals from such positions.

When Congress provides that a position shall not be subject to the provisions of the Civil Service Act and Rules, it discloses its intention that a person appointed to such a position shall not be entitled to the benefits of the Civil Service Act and Rules with respect to his employment in the excepted position. Accordingly, he is not while holding such position entitled to the benefits of the Retirement Act nor to security of tenure he would have enjoyed had the position not been excepted by law. But there is nothing in the action of Congress in excepting the position by law which indicates a purpose of Congress that the employee shall not be entitled to acquire or retain a status under the civil service laws. Such a status has no effect upon his tenure or rights with respect to the excepted-by-law position, and is in no way inconsistent with the statutory provision that the position shall not be subject to the Civil Service Act or Rules. Accordingly, questions 2 and 3 (a) are answered in the affirmative, and question 5, in the negative.

Question 3 (b), it is believed, may be construed as relating solely to original appointment from a civil service. register of eligibles, because the status under the Retirement Act of May 22, 1920, as amended (5 U. S. C. 691–694, 693a), of a person who has entered a position in the executive civil service of the United States by transfer, promotion, reinstatement, or demotion, has already been determined in opinions of the Attorney General (34 Op. 193, 334, 515; 35 id. 413). On this basis the Commission's question is

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answered in the negative, since such appointment is not to a classified position, but to one excepted from classification by statute, and, therefore, does not place the employee in the classified civil service of the United States within the meaning of the Retirement Act, as amended, supra (32 Op. 273; 34 id. 193, 334, 515; 35 id. 413), but merely confers upon such employee eligibility for subsequent transfer, promotion, or reinstatement to a position in the classified civil service.

Question 4 must be answered in the affirmative in view of the conclusion reached by Attorney General Sargent when considering a similar subject in his opinion of March 12, 1928 (35 Op. 413). On page 418 of that opinion, he said:

it has been the practice of the Commission for perhaps forty years to issue such certificates or to take other curative action nunc pro tunc in meritorious cases when its attention has been drawn to the omission of some formality necessary to preserve the rights of an employee, and I have no reason to doubt its power to do so. Aside from the probable correctness of its conclusion, the uniform practice followed for so many years may not, under the principle referred to above, be lightly disturbed."

In this respect I am in full accord with the opinion of my predecessor, for obviously Congress intended that in creating the Civil Service Commission it was thereby protecting the rights of civil service employees as well as the interests of the United States and the failure of an appointing officer to take the proper formal action should not be permitted to annul or obliterate the status to which an employee, perhaps without his knowledge, was entitled at any given time. Obviously, the curative action indicated is the issuance by the Commission of a certificate nunc pro tunc as soon as a matter of this sort is brought to its attention.

Respectfully,

To the PRESIDENT.

WILLIAM D. MITCHELL,