CIVIL SERVICE RETIREMENT ACT-CASE OF MR. ROSCOE F. WALTER The President has no authority to issue an Executive order conferring the benefits of the Civil Service Retirement Act upon Mr. Roscoe F. Walter, Senior Examiner in the United States Interstate Commerce Commission, since Mr. Walter's position is excepted from the requirements of examination under civil service rules, and the Civil Service Commission has recommended to the President against the issuance of such an order. DEPARTMENT OF JUSTICE, SIR: I have the honor to refer to a letter of January 23, 1932, from your Secretary, Mr. Lawrence Richey, with enclosures, requesting to be advised whether there would be any legal objection to the issuance of an Executive order placing Mr. Roscoe F. Walter, Senior Examiner in the United States Interstate Commerce Commission, in the classified civil service so as to enable him to enjoy the benefits of the Retirement Act of May 22, 1920, and amendments. It appears from Mr. Richey's letter and enclosures that Mr. Walter never has had a status in the competitive classified civil service; that his present position is excepted from the requirement of examination under the civil service rules, and that the Civil Service Commission has recommended to the President against the issuance of such an order. The Act of May 29, 1930, amending the Retirement Act of May 22, 1920, as amended, so far as material here, provides (c. 349, 46 Stat. 468, 470-471; 5 U. S. C. 693a): "SEC. 3. This Act shall apply to the following employees and groups of employees: "(a) All employees in the classified civil service of the United States, including all persons who have been heretofore or may hereafter be given a competitive status in the classified civil service, with or without competitive examination, by legislative enactment, or under civil service rules promulgated by the President, or by Executive orders covering into the competitive classified service groups of employees with their positions or authorizing the appointment of individuals to positions within such service. NOTE. The publication of this opinion was delayed. "The provisions of this Act may be extended by Executive order, upon recommendation of the Civil Service Commission, to apply to any employee or group of employees in the civil service of the United States not included at the time of its passage. * " Paragraph (a) first appeared in the Act of March 27, 1922 (c. 116, 42 Stat. 470), construing the expression in the Retirement Act of May 22, 1920, "classified civil service." Not only did Congress in that Act define the term "classified civil service," as used in the Retirement Act, but also provided in paragraph 2 thereof that "The expression 'classified civil service' as the same occurs in other Acts of Congress shall receive a like construction to that herein given." Paragraph (a) confers the benefits of the Retirement Act upon all employees, among others, who have been or may be appointed by Executive order to positions within the competitive classified civil service. However, assuming without deciding that the President would have authority to do so without covering into the competitive classified civil service all examiners of the Interstate Commerce Commission with their positions, the placing of Mr. Walter by Executive order in the competitive classified civil service would not be appointing him to a position in that service within the meaning of paragraph (a), for the reason that his present position is excepted (Schedule A, section 1, paragraph 4) from the requirement of examination under the civil service rules (Rule II, section 3). Paragraph (g), among other things, authorizes the President, upon the recommendation of the Civil Service Commission, to extend the benefits of the Retirement Act to any employee in the civil service of the United States not entitled to the benefits of that Act on May 29, 1930. In the case of Mr. Walter, however, the Civil Service Commission has recommended to the President against extending to him the benefits of the Retirement Act. It would appear, therefore, that the President is without authority to confer upon Mr. Walter the benefits of the Retirement Act. Respectfully, To the PRESIDENT. WILLIAM D. MITCHELL. AUTHORITY OF THE PRESIDENT TO GRANT SICK LEAVE TO ALL EMPLOYEES IN THE FEDERAL SERVICE The President is without authority to issue an Executive order granting sick leave of absence generally to all employees in the Federal service. DEPARTMENT OF JUSTICE, July 28, 1932. SIR: I have the honor to refer to a letter from your secretary, Mr. Lawrence Richey, dated July 1, 1932, enclosing a letter to you from Miss Gertrude M. McNally, SecretaryTreasurer, National Federation of Federal Employees, inviting attention to the fact that certain employees of the Federal Government, located mostly in the navy yards and arsenals, the Government Printing Office, and the Bureau of Engraving and Printing, do not receive sick leave of absence, and urging the issuance of an Executive order granting sick leave of absence generally to all employees in the Federal service; also Mr. Richey's letter of July 6, 1932, enclosing a similar communication to you from Mr. N. F. Alifas, President, District No. 44, International Association of Machinists. Mr. Richey requests to be advised whether you possess the authority to issue such an Executive order. By the Act of March 3, 1893, c. 211, 27 Stat. 715, as amended (U. S. C., Title 5, sec. 30), Congress provided that "the head of any Department may grant thirty days' annual leave with pay in any one year to each clerk or employee." This Act further provided that under certain circumstances the annual leave with pay might be extended for not to exceed thirty days in the event of the illness of a clerk or employee or of some member of his immediate family. This statute has uniformly been held to apply only to clerks and employees of the executive departments as opposed to employees of the so-called independent establishments or bureaus. 22 Op. 62; 21 Op. 338. Special statutory provisions for leave of absence exist with reference to the classes of employees referred to in Miss McNally's letter. By the Act of June 11, 1896, c. 420, 29 Stat. 453 (U. S. C., Title 44, sec. 45), employees of the Government Printing Office were allowed "leaves of absence with pay" not exceeding thirty days in any one fiscal year. By the Act of July 6, 1892, c. 154, 27 Stat. 87, as amended (U. S. C., Title 31, sec. 172), the employees of the Bureau of Engraving and Printing were allowed "leave of absence with pay" not exceeding thirty days in any one year. By the Act of August 29, 1916, c. 417, 39 Stat. 617 (U. S. C., Title 34, sec. 511), every "employee of the navy yards, gun factories, naval stations, and arsenals of the United States Government" was granted "thirty days' leave of absence each year, without forfeiture of pay." The last of these statutes expressly left in force the provisions of the Act of March 3, 1909, c. 256, 35 Stat. 755 (U. S. C., Title 34, secs. 503, 512), under which the Secretary of the Navy is authorized to extend for not to exceed fifteen days the annual leave of absence of the clerical, drafting, inspection, and messenger forces at navy yards and stations in cases of illness. These statutes represented the state of the law until the Act of June 30, 1932, Public No. 212, section 215 of which provided that "hereafter no civilian officer or employee of the Government who receives annual leave with pay shall be granted annual leave of absence with pay in excess of fifteen days in any one year," with a proviso, however, that "nothing herein shall be construed as affecting the period during which pay may be allowed under existing laws for so-called sick leave of absence." (47 Stat. 407.) Thus, it appears that while Congress has provided in express terms for annual leaves of absence with pay to employees of the Government Printing Office, the Bureau of Engraving and Printing, and the navy yards and arsenals, it has not provided for these employees, except as to the special classes of employees at navy yards and stations above mentioned, any additional leave on account of sickness, unless such employees may be regarded as within the sickleave provisions of the statute relating to employees of the executive departments. But the enactment by Congress of special provisions as to leave for employees of the Government Printing Office, the Bureau of Engraving and Printing, and the navy yards and arsenals would seem to indicate clearly that Congress did not regard such employees as being within the general provisions of the departmental leave law. This has been expressly held by my predecessor Attorney General Harmon with respect to employees of the Bureau of Engraving and Printing. 21 Op. 338. Moreover, apart from this fact, most of the employees in question could not properly be held to be clerks or employees of an executive department. See 26 Op. 209. In my opinion the express grant of sick leave with pay to employees of the executive departments and the failure, with certain specified exceptions, to grant such leave to employees of the Government Printing Office, the Bureau of Engraving and Printing, and the navy yards and arsenals, indicates clearly the legislative intent that the employees last named should not receive sick leave. See 21 Op. 338, supra; 26 Op. 209, supra; 29 Op. 481; 26 Comp. Dec. 253; 23 Comp. Dec. 192; 21 Comp. Dec. 611. I am advised that this has been the uniform construction of the statutes in question by all the bureaus and organizations involved, except as to the administrative office force of the Bureau of Engraving and Printing, which force has been allowed the same annual and sick leave which has been granted to employees of the Treasury Department proper. If there were any doubt as to the construction of the statutes, the administrative construction thereof by the organizations involved would seem to be controlling. 36 Op. 313, 513. No additional authority with respect to the allowance of sick leave is conferred upon the President by the Act of June 30, 1932, Public No. 212, except that by section 215 of that Act the President is directed, "within the limits now authorized by law," to administer the so-called sick leave of absence under such regulations as to obtain, so far as practicable, uniformity in the various executive departments and independent establishments. Accordingly, it is my opinion that the President is without authority to issue an Executive order granting sick leave of absence generally to all employees in the Federal service. Respectfully, To the PRESIDENT. WILLIAM D. MITCHELL. |