"APPORTIONMENT who have met the requirements of apportionment and have served in the apportioned service may be reinstated or transferred to the apportioned service without again meeting such requirements. Others must be eligible for appointment to the apportioned service as of the date on which reinstatement or transfer to the apportioned service is authorized. Waiver of apportionment will only be made by the Commission itself, and only upon a statement of reasons showing that such transfer or reinstatement is required for the interest of the service."

REINSTATEMENT-TRANSFER.-Persons

This Minute was followed by a Minute of August 5, 1932, to which Commissioner Wales likewise dissented. The Minute is as follows:

"REINSTATEMENTS AND RETRANSFERS TO APPORTIONED SERVICE. The Commission has approved the memorandum recommending that reinstatements and retransfers to the apportioned service of persons from States in excess be not permitted."

In view of the long-continued administrative construction of Rule IX as not authorizing the Commission to apply the law of apportionment in the reinstatement of persons to the apportioned service, and since the action of the Commission of March 20, 1931, and August 5, 1932, was taken without any change in the rule by the President, the Commission now questions the legality of these Minutes.

Rules VII, IX and X, relating to certification, reinstatement, and transfer, respectively, are those to which the law of apportionment might properly be applied. Rules VII and X contain specific references to the apportionment law. Rule IX, however, contains no reference to this law, and I am unable to find therein any language which impliedly authorizes the Commission to apply the law in the reinstatement of persons to the apportioned service. The specific reference to the law in Rules VII and X and the silence of Rule IX in this respect is significant; in fact it would seem to indicate when the President authorizes the Commission to apply the law of apportionment in the administration of any rule, he does not leave the matter to inference or implication. As heretofore pointed out, the rule was construed

by the Commission from its establishment in 1883 until the adoption of the Minute in 1931, with the exception of a short period prior to 1903, as not authorizing the Commission to apply the law of apportionment in reinstatements. It is well settled that the courts will not disturb longcontinued administrative construction of a statute unless it is clearly erroneous.

Under the circumstances, it is my opinion that the President has not authorized the Commission by Rule IX to apply the law of apportionment in the reinstatement of persons to the apportioned service. It follows, therefore, that the above-mentioned Minutes are not authorized under Rule IX of the Civil Service Rules.

The second part of the Commission's question refers to the case of a person who passed an examination for a certain type of position which entitled him to have his name placed and continued for a certain length of time on two registers, one for appointment to the apportioned and the other to the non-apportioned service. Upon accepting appointment to a non-apportioned position, his name was removed from both registers and his eligibility for appointment to the apportioned service was cancelled. The Commission states that it was within its power to continue his name on the apportioned register for a certain length of time if it had so desired, but that such action was taken to prevent undue interference in the conduct of public business through the training of a second employee in the event the first employee should be certified for appointment to a position in the apportioned service.

During the period in which his name could have been continued on the apportioned register his vacated position. on that register was reached so that if his name had been permitted to remain thereon he would have been certified by the Commission for appointment to a position in the apportioned service. After serving several years in the non-apportioned position he resigned. He now seeks to be reinstated to a position in the apportioned service. Under the practice existing prior to the adoption of the above-mentioned Minutes, the Commission would have certified him for reinstatement on the theory that there was an obligation resting upon the Commission to protect the right to be

appointed to a position in the apportioned service which the employee acquired through his competitive civil service examination.

In the circumstances, the Commission inquires as to whether or not such reinstatement could be made under the opinion of the Attorney General reported in 37 Op. at page 7, on the theory that the person seeking reinstatement acquired a status therefor at the time his vacated position on the apportioned register was reached as above-mentioned.

In the opinion referred to, Attorney General Mitchell had occasion to consider the authority of the Commission to issue a certificate nunc pro tunc. The employee involved had passed a competitive examination. Subsequently, without certification by the Commission, she received an appointment to an excepted position in one of the departments. During her tenure of service her name was reached on the register of the Civil Service Commission for certification to a position in the classified civil service. Had the officer who appointed her to the excepted position known of this fact, he could have requested the Commission to certify her name for appointment to the excepted position and she would have thereby acquired an eligibility status for appointment, transfer, or reinstatement to a position in the classified civil service. Attorney General Mitchell quoted the following excerpt from the opinion of Attorney General Sargent (35 Op. 413, 418):

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* 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.'"

He then concluded as follows:

"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 appoint

ing 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." [37 Op. 14.]

Since the employee in the case submitted by the Commission acquired by competitive examination a right to be appointed to a position in the apportioned service, and since the Commission could have preserved this right by continuing him on the apportioned register but did not do so, it is my opinion that the case falls within the above-referredto opinions, and the Commission may now take such curative action as may be necessary to accord to the employee a status of eligibility for reinstatement to a position in the apportioned service as of the date his vacated position was reached on the apportioned register. Since the answer to the first part of the Commission's question is that the Commission is not authorized to apply the law of apportionment in certifying persons for reinstatement to positions in the apportioned service, the answer to the second part of its question necessarily is that the Commission may reinstate the employee in question without regard to the law of apportionment.

Respectfully,

To the PRESIDENT.

J. CRAWFORD BIGGS,
Acting Attorney General.

EXEMPTION OF AMERICAN MINISTER TO ALBANIA FROM COMPULSORY RETIREMENT

Section 204 of the Economy Act of June 30, 1932, 47 Stat. 404, supersedes section 26 (d) of the Act of February 23, 1931, 46 Stat. 1211, insofar as the latter section authorizes the President to continue persons in the service of the United States.

A foreign service officer becomes eligible for retirement on August 6, 1934, under section 26 (n) of the Act of February 22, 1931, supra. Held, that such officer does not reach the age prescribed for automatic separation from the service until September 1, 1934, (See Executive Order No. 6834 of August 29, 1934.)

DEPARTMENT OF JUSTICE,

August 28, 1934.

SIR: I have the letter of the Acting Secretary of State of August 27, 1934, enclosing memorandum of the Legal Adviser to the Secretary relative to the authority of the President to issue an Executive order exempting Mr. Post Wheeler, American Minister to Albania, from retirement for age and continuing him in the service for such time as may be deemed necessary, not in excess of two months from August 6, 1934. [Executive Order, No. 6834, Aug. 29, 1934.]

I am enclosing a revised draft of the proposed Executive order submitted by the Acting Director of the Bureau of the Budget for the consideration of the Attorney General under the provisions of Executive Order No. 6247 of August 10, 1933.

The original draft relies upon Subsection (d) of Section 26 of the Act of February 23, 1931 (ch. 276, 46 Stat. 1211), as authority for the issuance of the order. Subsection (d) as now embodied in Section 21 (d) of Title 22, United States Code, is as follows:

"When any Foreign Service officer has reached the age of sixty-five years and rendered at least fifteen years of service he shall be retired: Provided, That if any such officer shall have served thirty years he may be retired at his own request before reaching the age of sixty-five years: Provided further, That the President may in his discretion retain any such officer on active duty for such period prior to his reaching seventy years of age, as he may deem for the interests of the United States."

Section 204 of the Economy Act of June 30, 1932 (ch. 314, 47 Stat. 382, 404), provides:

"On and after July 1, 1932, no person rendering civilian service in any branch or service of the United States Government or the municipal government of the District of Columbia who shall have reached the retirement age prescribed for automatic separation from the service, applicable to such person, shall be continued in such service, notwithstanding any provision of law or regulation to the contrary: Provided, That the President may, by Executive Order, exempt from the provisions of this section any person when, in his judgment, the public interest so requires:

*