by the Revisers, of the words "in the discretion of the head of any department" should be read as changing the intention of the 1870 act, or as creating an implied exception to the Presidential rulemaking authority conferred by the act of March 3, 1871, and carried forward as 1753 R.S.

Congress has recently declared a statutory policy against discrimination in Federal employment on the basis of sex. Section 1103 of the Classification Act of 1949, 63 Stat. 972, 5 U.S.C. 1074, provides that:

"In the administration of this Act, there shall be no discrimination with respect to any person, or with respect to the position held by any person, on account of sex, marital status, race, creed, or color." Authority to implement this provision by regulation is conferred on the Civil Service Commission. Section 1101, 63 Stat. 971, 5 U.S.C. 1072. While the foregoing provision is contained in an act relating to classification of positions, rather than to appointments and promotions, I believe it can fairly be said to reflect a congressional policy opposed to discrimination solely on grounds of sex in any aspect of Federal employment. In any event, I believe the President has authority, under 1753 R.S., to extend that policy to appointments to and promotions within the civil service.3

The conclusion expressed herein is contrary to that expressed by Attorney General Cummings in 38 Op. A.G. 77 (1934). However, it does not appear that Mr. Cummings' attention was called to the fact that the phrase "in the discretion of the head of any department" was not contained in the act of July 12, 1870, or to the relevant legislative history of that act and the Civil Service Act of 1883 discussed above.

3 Compare Executive Orders 10925, March 6, 1961, 26 F.R. 1977, and 10590, January 18, 1955, 20 F.R. 409, declaring the "policy of the United States Government that equal opportunity be afforded all qualified persons, consistent with law, for employment in the Federal Government" and stating that that policy "necessarily excludes and prohibits discrimination against any employee or applicant for employment in the Federal Government because of race, color, religion or national origin."

In my opinion section 165 of the Revised Statutes does not limit the constitutional and statutory authority of the President to prescribe rules regulating the eligibility of women for positions in the Federal Service. The answer to the question submitted is therefore in the negative.

Respectfully,

ROBERT F. KENNEDY.

COMMUNICATIONS SATELLITE CORPORATION

The method which sections 302 and 303(a) of the Communications Satellite Act of 1962 (approved August 31, 1962, 76 Stat. 423, 47 U.S.C. 732, 733 (a)) prescribes for the appointment of the incorporators and three of the directors of the communications satellite corporation to be established under that act-i.e., appointment by the President, by and with the advice and consent of the Senate is not determinative of the question whether the incorporators and such directors are officers of the United States. The positions of incorporator and Presidentially appointed director which were created by sections 302 and 303 (a) of the Communications Satellite Act of 1962 are, under the provisions of that act, private, and not public, posts, and persons serving therein are not officers of the United States.

THE PRESIDENT.

OCTOBER 25, 1962.

MY DEAR MR. PRESIDENT: I have the honor to reply to your request for my opinion on a question arising out of the Communications Satellite Act of 1962 (hereinafter referred to as the "act").1 That question is whether incorporators appointed by the President, with the concurrence of the Senate, to effect the establishment of the communications satellite corporation authorized by the act are officers of the United States by virtue of such appointment.2

A similar inquiry will no doubt arise, after the incorporators have completed their work, with regard to those members of the new corporation's board of directors whom the President is authorized to appoint, again with the concurrence of the Senate. I am, therefore, taking the liberty of advising you with regard to the Presidentially appointed directors, as well as the incorporators.

P.L. 87-624, 76 Stat. 419, approved August 31, 1962.

* Although the incorporators whom you recently named are serving under recess appointments, they, of course, have neither more nor less of the character of officers of the United States by reason of their temporary lack of Senate confirmation.

Section 302 of the act provides for the incorporators as follows:

"The President of the United States shall appoint incorporators, by and with the advice and consent of the Senate, who shall serve as the initial board of directors until the first annual meeting of stockholders or until their successors are elected and qualified. Such incorporators shall arrange for an initial stock offering and take whatever other actions are necessary to establish the corporation, including the filing of articles of incorporation, as approved by the President."

Section 303 (a), providing for the new corporation's regular board of directors, reads in pertinent part as follows: "The corporation shall have a board of directors consisting of individuals who are citizens of the United States, of whom one shall be elected annually by the board to serve as chairman. Three members of the board shall be appointed by the President of the United States, by and with the advice and consent of the Senate, effective the date on which the other members are elected, and for terms of three years or until their successors have been appointed and qualified, except that the first three members of the board so appointed shall continue in office for terms of one, two, and three years, respectively, and any member so appointed to fill a vacancy shall be appointed only for the unexpired term of the director whom he succeeds. Six members of the board shall be elected annually by those stockholders who are communications common carriers and six shall be elected annually by the other stockholders of the corporation * * *"

For the reasons discussed below, I am of the opinion that neither the incorporators nor the Presidentially appointed directors are to be classified as officers of the United States.

The method of appointment directed by sections 302 and 303 (a) is, of course, derived from the following portion of Article II, section 2, clause 2 of the Constitution:

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may