istration and the Civilian Conservation Corps were emergency agencies established to meet emergency needs. The lives of the agencies were extended from time to time but the agencies were never made permanent establishments of the Government. There can be no doubt that after May 1940 all of these agencies were regarded as temporary agencies and that the tenure of service of the administrative employees of the agencies was limited to the lives of the respective agencies. The agencies have been abolished or liquidated and their functions are not being carried on by any other department or agency except to complete the liquidation.

With respect to section 8 of the Selective Training and Service Act, I perceive no substantial difference between the positions held by the administrative employees of these four agencies and the positions held by "War Service appointees.' In my opinion dated May 26, 1943 (40 Op. 271), I concluded that "War Service appointees," appointed to government positions for the duration of the war and six months thereafter, hold "temporary positions" within the meaning of section 8. In that opinion I pointed out that war service appointments included not only appointments for the duration of the war to positions in the regular establishments of the Government but also appointments "to emergency positions made necessary to meet war needs." I then stated:

*

"These emergency positions will in most cases cease to exist upon the termination of the war. In my opinion the positions of War Service appointees * * are temporary' within the meaning of section 8 of the Selective Training and Service Act. * * * Section 8 makes mandatory the reinstatement of a person coming within its terms and his continuance in the position for one year unless discharged for cause. To hold section 8 applicable to * * War Service appointees who have been appointed to emergency positions of the kind mentioned would require the reinstatement, and the retention for not less than one year, of many persons in positions which no longer exist. A construction which requires this to be done would render administration of the section impossible and should be rejected. United States v. Tappan, 11 Wheat. 419, 426; United States v. Powers, 307 U. S. 214, 217; 39 Op. A. G. 497, 498."

The form of the appointment papers used by the Public

Works Administration and the Work Projects Administration shows that positions in those agencies were recognized to be temporary only. If it were proper to consider only the form of the appointment papers, a distinction might be made between positions in these two agencies, on the one hand, and positions in the National Youth Administration and the Civilian Conservation Corps on the other. The form of the appointment papers, however, is not controlling. The decisive fact is that all of these agencies were temporary in nature and were intended by Congress to continue only during the emergency which gave rise to their creation.

For the reasons that I have given it is my opinion that the positions held by former administrative employees of the Public Works Administration, the Work Projects Administration, the National Youth Administration and the Civilian Conservation Corps and the employees referred to in the fourth question asked by the Commission were temporary positions within the meaning of section 8 (b) of the Selective Training and Service Act of 1940, as amended.

I conclude therefore that questions 1, 2 (a), 3, and 4 should be answered in the negative. The answer to question 2 (a) makes it unnecessary to consider question 2 (b).

In reaching the above conclusion I have not overlooked the fact that prior to the time the Public Works Administration and the Civilian Conservation Corps ceased their operations some positions in the agencies were deemed not to be temporary positions for the purpose of the Ramspeck Act (approved November 26, 1940, c. 919, 54 Stat. 1211). These positions were covered into the classified civil service and the incumbents were given an opportunity to acquire a competitive status in the classified civil service. As I have pointed out, this action cannot be accepted as determinative of the question whether positions in these agencies were other than temporary within the meaning of section 8 of the Selective Training and Service Act. The provisions of section 8 are not restricted to employees who have, or who may acquire, a classified civil service status. The right of an employee as the holder of a classified civil service status and his right to reemployment under section 8 of the Selective Training and Service Act are separate and distinct rights, and are governed by different statutes; terminologies con

trolling with respect to the one right are not necessarily controlling with respect to the other.

This opinion does not apply to certain motor shop and administrative employees of the Civilian Conservation Corps who, in April 1942, were transferred from the Corps to the War Department. Any question concerning the reemployment rights of any former employees so transferred will be dealt with separately, if and when it should arise.

The fifth question asked by the Civil Service Commission. is:

"May the provisions of section 6 of Executive Order 8743, April 23, 1941, be limited to persons who are restored to their former positions, or to positions of like seniority, status, and pay in accordance with the Selective Training and Service Act and similar statutes granting reemployment rights?”

Secton 1 of the Ramspeck Act (approved November 26, 1940, c. 919, 54 Stat. 1211) authorized the President to cover into the classified civil service any offices or positions in or under an executive department, independent establishment, or other agency of the Government, with exceptions not pertinent. Section 2 of the statute prescribed the conditions under which incumbents of positions covered into the classified civil service could acquire a classified civil service status. These provisions of the statute were put into effect by Executive Order 8743, section 6 of which reads as follows:

"Section 6. Any person who in order to perform active service with the military or naval forces of the United States has left, or leaves, a position (other than a temporary position) which is covered into the classified civil service under section 1 of this order shall be reinstated in the department or agency to the position in which he last served or to a position of like seniority, status, and pay in the same department or agency, and upon reinstatement thereto may acquire a classified civil-service status: Provided, (1) that he has been honorably discharged from the military or naval service, (2) that he makes application for reinstatement within forty days of such discharge, (3) that the head of the department or agency concerned recommends within one year of his reinstatement that he be permitted to acquire a classified civilservice status and certifies that he has served with merit for at least six months, and (4) that he qualifies in such suitable

noncompetitive examination as the Commission may prescribe."

The Civil Service Commission is of the opinion that the provisions of section 6 of Executive Order 8743 should be interpreted not as conferring any new or additional right to reinstatement in a civilian position upon an employee who had entered the armed forces, but as setting forth the terms upon which a classified civil service status may be acquired by a person reinstated in the Government service pursuant to section 8 of the Selective Training and Service Act of 1940, as amended, or any other applicable similar statute. I agree that this is a proper interpretation.

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Section 2 of the Ramspeck Act provides that the incumbent any office or position that is covered into the classified civil service under the provisions of section 1 of the act shall not thereby acquire a classified civil service status, except upon recommendation by the head of the agency concerned, certification that the incumbent of the position has served with merit for a stated period, and upon his passing such suitable noncompetitive examination as the Civil Service Commission may prescribe.

At the time Executive Order 8743 was issued it was foreseen that some employees whose positions were covered into the classified civil service would be called into the armed forces, and hence that they might lose the opportunity to qualify, and to be recommended, for a classified civil service status, since their reinstatement under section 8 of the Selective Training and Service Act would not of itself confer upon them a classified civil service status. The purpose of section 6 of the Executive order was to take care of this situation.

Section 6 of the Executive order describes the persons to whom it applies; namely, "any person who in order to perform active service with the military or naval forces of the United States has left, or leaves, a position (other than a temporary position)" that is covered into the classified civil service under section 1 of the order. The section then prescribes requirements that must be met if a person who has been reinstated is to acquire a classified status.

The provision that I have quoted from the Executive order is substantially the same as the language of section 8 (b) of the Selective Training and Service Act. I believe that

the words "other than a temporary position" as used in section 6 of the Executive order may properly be given the same meaning as those words have in section 8 of the Selective Training and Service Act.

I conclude, therefore, that the fifth question should be answered in the affirmative.

Sincerely yours,

FRANCIS BIDDLE.

APPENDIX I

PUBLIC WORKS ADMINISTRATION

The Federal Emergency Administration of Public Works, later termed the Public Works Administration, was established pursuant to the provisions of title II of the National Industrial Recovery Act of June 16, 1933 (c. 90, 48 Stat. 195, 200) and Executive Order 6174, dated June 16, 1933, for the purpose of increasing employment by assisting in financing useful public works projects with funds allotted by the President from appropriations made therefor. (See also Executive Order 6198, July 8, 1933; Executive Order 6252, August 19, 1933; and Executive Order 6929, December 26, 1934.)

Section 201 (b) of title II of the act of June 16, 1933, authorizes the Federal Emergency Administrator of Public Works to appoint and fix the compensation of officers and employees without regard to the civil service laws or the Classification Act of 1923, as amended. This authorization, without material modification, was continued in subsequent statutes extending the life of the Federal Emergency Administration of Public Works and the Public Works Administration until 1942 when certain positions were made subject to the classified civil service.

Section 201 (d) of the act of June 16, 1933, supra, provides that agencies established under the act shall terminate two years after the date of enactment of the act, or sooner if the emergency recognized by section 1 of the statute is declared ended by proclamation of the President or by joint resolution of the Congress. No action was taken within the two-year period to terminate the Federal Emergency Admin