APPOINTMENT AND PROMOTION OF WOMEN IN FEDERAL CIVIL SERVICE

The President's power to prescribe rules for promoting the efficiency of the Federal Civil Service and ascertaining the fitness of candidates for appointment and promotion, derived from section 1753, Revised Statutes, the Civil Service Act of 1883 (22 Stat. 403), and his constitutional power as Chief Executive, includes the power to prescribe the conditions under which appointing officers of the Federal Government may consider only male or only female candidates for appointment, promotion, and other personnel actions. Section 165 of the Revised Statutes does not limit the foregoing power. (38 Op. A.G. 77 (1934) overruled.)

THE PRESIDENT.

JUNE 14, 1962.

MY DEAR MR. PRESIDENT: I have the honor to respond to your request, made on behalf of the Chairman of the Civil Service Commission, for my opinion on the following question:

"Does section 165 of the Revised Statutes prohibit the President, or the Civil Service Commission acting under delegated authority from the President, from prescribing the conditions under which appointing officers of the Federal Government may consider only male or only female candidates for appointment, promotion, and other personnel actions?"

I

Section 1753 of the Revised Statutes, 5 U.S.C. 631, provides:

"The President is authorized to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof, and ascertain the fitness of each candidate in respect to age, health, character, knowledge, and ability for the branch of

service into which he seeks to enter; and for this purpose he may employ suitable persons to conduct such inquiries, and may prescribe their duties, and establish regulations for the conduct of persons who may receive appointments in the civil service."

Section 1753 was derived from section 9 of the act of March 3, 1871, c. 114, 16 Stat. 514. Pursuant to this section President Grant appointed a Civil Service Commission, which established a system of competitive examinations. However, Congress appropriated funds for the work of that Commission for only two years. See Sen. Rept. 576, 47th Cong., 1st sess., (1882) pp. IV to VIII; Paul P. Van Riper, History of the United States Civil Service (1958), pp. 68–71.

The Civil Service Act of 1883, 22 Stat. 403, 5 U.S.C. 632 et seq., implemented and provided effective machinery for carrying out the policy reflected in the act of 1871. The act provided that appointments and promotions to positions in the classified civil service should be made from among those qualified by competitive examination. It established a Civil Service Commission, and empowered it to aid the President, as he might request, in preparing suitable rules for carrying out the act. Section 7 of the act expressly preserves all Presidential authority, not inconsistent with the 1883 act, conferred by 1753 R.S.

The legislative history of the Civil Service Act of 1883 makes it clear that it was intended to establish the "pivotal" idea that appointments and promotions within the classified service should be given to the person who is "best fitted to discharge the duties of the position" and to achieve "coherence" and "uniformity" in carrying out that concept. (Sen. Rept. 576, supra, pp. IX, X.)

The Senate Committee Report appends the testimony of Dorman B. Eaton, then Chairman of the (Presidential) Civil Service Commission established under the 1871 law, who had had a leading part in drafting the bill, and who became the first Chairman of the (statutory) Civil Service Commission established pursuant to the 1883 law.1 Mr.

1 The Pendleton bill, as introduced in 1881, had been redrafted by a committee of the New York Civil Service Reform Association. Eaton was the principal draftsman, and a number of other persons, including George William Curtis, participated in the revision. W. D. Foulke,

Eaton's testimony lays particular stress on the breadth of Presidential discretion with respect to Federal employment and the intention of the bill not to limit that discretion. Thus, for example, Mr. Eaton emphasized that:

"The Pendleton bill [the bill which was enacted] assumes that the power of appointment to the executive service is vested in the President, and that it is neither legal nor desirable to limit that authority, ***." (Id., p. 5). To the same effect is the testimony of George William Curtis (Id., p. 156).

***”

An alternative proposal before the committee, which was not adopted, was the Dawes bill, S. 939. There was general agreement that the basic intent of the Dawes and Pendleton bills was the same. Id., pp. 5, 22. Section 2 of the Dawes bill would have provided that certain appointments "are open to competition to any citizen of the United States, male or female." Commenting on this provision Mr. Eaton said: "In the next place, section 2 provides that applications for appointments in the departments at Washington shall be received only for appointments, &c., of one class, and 'these appointments are open to competition to any citizen of the United States, male or female.'*** my suggestion is that such matters should be provided for in the rules themselves, modified from time to time and adapted to the various offices, and not laid down in the statute. Provisions more detailed, more apt, and sufficiently pliable to work conveniently are contained in the rules, and to that I think they should be confined." (Id., p. 25; see also p. 22.)

Fighting the Spoilsmen (1919) p. 7; Appendix to Sen. Rept. 576, supra, p. 156.

Eaton served as Chairman of the (Presidential) Civil Service Commission from 1873 to 1883, and as Chairman of the (statutory) Civil Service Commission from 1883 to 1886. At the request of President Hayes he had made a study of the British Civil Service system, embodied in his Civil Service in Great Britain (1880). George William Curtis was Chairman of the (Presidential) Civil Service Commission from 1871 to 1873 and was Chairman for many years of the National Civil Service Reform League. Curtis and Eaton were among the recognized leaders of the American civil service reform movement. See Dictionary of American Biography, Vol. IV, pp. 614-616; Vol. V, pp. 607-608; Foulke, op. cit. supra, passim, and especially pp. 2, 90, 124; Van Riper, History of the United States Civil Service (1958), pp. 65, 78-79.

The power of the President to prescribe rules for the promotion of the efficiency of the Federal Service, derived from his constitutional power as Chief Executive as well as from the provisions of 1753 R.S. and section 2 of the Civil Service Act of 1883, has been broadly construed as including the power to carry out the spirit as well as the letter of the Civil Service laws, to supplement the statutory rules by others not specifically covered by statute, and to impose regulations not positively restricted by statute. 30 Op. A.G. 512, 516 (1916); 23 Op. 595, 597 (1901).

In my opinion, the question whether a position may be filled by men only, or by women only, or by qualified members of either sex, is a matter involving the "efficiency" of the Federal Service, and the "fitness" of candidates thereto, within the meaning of 1753 R.S. Hence, it is a matter as to which the President, by the terms of that section as well as by virtue of his inherent powers as Chief Executive, has authority to prescribe rules and regulations. This conclusion is clearly borne out by the testimony of the draftsman of the Pendleton bill, which became the Civil Service Act of 1883.2

II

There remains for consideration the question whether 165 R.S., 5 U.S.C. 33, is to be read as limiting the foregoing Presidential authority. That section reads:

"Women may, in the discretion of the head of any Department, be appointed to any of the clerkships therein authorized by law, upon the same requisites and conditions, and with the same compensations, as are prescribed for men."

Since 165 R.S. and 1753 R.S. are both contained in the same enactment, i.e., the Revised Statutes, they must be given, so far as possible, a reading which will be consistent and give full effect to both provisions. Nothing in the language of 165 R.S. purports to limit the rulemaking au

2 Mr. Eaton's testimony is explicit that the rulemaking power to which he referred is the power conferred on the President by 1753 R.S. Id. pp. 12, 13, 23-24. The Civil Service Act of 1883 conferred no new rulemaking authority, but preserved the power of the President under 1753 R.S. and empowered the Civil Service Commission "to aid the President, as he may request, in preparing suitable rules." Section 2, 5 U.S.C. 633. See also 30 Op. A.G. 512, 515, supra.

thority of the President under 1753 R.S., or to exclude the subject of appointment of women from that authority. A limitation on that Presidential authority should not be implied, unless the statutory language and history compel it.

In construing the Revised Statutes it is appropriate to refer back to the language and history of the original enactment. United States v. Hirsch, 100 U.S. 33, 35 (1879); United States v. Lacher, 134 U.S. 624 (1890); United States v. Moore, Fed. Cas. No. 15,804 (1878); United States v. Thomas, 145 Fed. 74 (1906). The intent of the original enactment is presumed to be carried forward. Pott v. Arthur, 104 U.S. 735, 736 (1881). The words used by the Revisers are "not lightly to be read as making a change." United States v. Sischo, 262 U.S. 165, 169 (1923).

165 R.S. was derived from section 2 of the act of July 12, 1870, 16 Stat. 230, 250, which provided as follows:

"And be it further enacted, That the heads of the several departments are hereby authorized to appoint female clerks, who may be found to be competent and worthy, to any of the grades of clerkships known to the law, in the respective departments, with the compensation belonging to the class to which they may be appointed, but the number of first, second, third, and fourth class clerks shall not be increased by this section." This provision was added as an amendment to a general appropriation act. The debate in both the Senate and the House of Representatives indicates that the only purpose of this provision was to clarify the existing law by specifically permitting department heads to hire women at any grade of clerkship authorized by law, and to pay equal compensation to men and women. This was considered necessary because department heads assumed that since Congress had appropriated funds for the employment of females at a lower rate of pay than the four grades of clerkships then provided for, they were without authority to employ women at these grades of clerkships. Cong. Globe, 41st Cong., 2d sess. (1869–1870), pp. 3890, 4330. Nothing in the text or legislative history of this section discloses any intention to limit the authority of the President with respect to matters involving the efficiency of the Federal Service and the fitness of candidates. I do not believe the addition,