B-11861, SEPTEMBER 6, 1940, 20 COMP. GEN. 128

B-11861: Sep 6, 1940

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FROM A CIVIL-SERVICE REGISTER IN ACCORDANCE WITH CIVIL-SERVICE RULE II 3 (D) DOES NOT CHANGE THE STATUS OF THE POSITION TO A CLASSIFIED CIVIL-SERVICE POSITION AND THE APPOINTMENT IS SUBJECT TO THE PROVISIONS OF SECTION 702 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT. 1940: I HAVE YOUR LETTER OF AUGUST 12. IF THE EFFECT OF SUCH APPOINTMENT IS TO INCREASE THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES FROM THE STATE OF RESIDENCE OF ANY SUCH NON-CIVIL-SERVICE APPOINTEE BEYOND THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES TO WHICH THE STATE IS ENTITLED. THE APPOINTMENT OF WHICH IS MADE BY THE PRESIDENT: PROVIDED FURTHER. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT THE APPORTIONMENT RESTRICTION CONTAINED IN THIS SECTION IS APPLICABLE TO THE APPOINTMENT OF AN ATTORNEY FROM A CIVIL-SERVICE REGISTER TO A POSITION IN A FIELD OFFICE OF THE WAGE AND HOUR DIVISION OF THIS DEPARTMENT.

B-11861, SEPTEMBER 6, 1940, 20 COMP. GEN. 128

APPOINTMENTS TO NON-CIVIL-SERVICE POSITIONS - APPORTIONMENT RESTRICTIONS APPOINTMENT OF AN ATTORNEY TO AN EXCEPTED OR NON-CIVIL-SERVICE POSITION IN A FIELD OFFICE OF THE WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, FROM A CIVIL-SERVICE REGISTER IN ACCORDANCE WITH CIVIL-SERVICE RULE II 3 (D) DOES NOT CHANGE THE STATUS OF THE POSITION TO A CLASSIFIED CIVIL-SERVICE POSITION AND THE APPOINTMENT IS SUBJECT TO THE PROVISIONS OF SECTION 702 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941, FOR APPORTIONMENT BY STATES, ON A BASIS OF POPULATION, OF APPOINTMENTS TO NON-CIVIL-SERVICE POSITIONS UNDER APPROPRIATIONS IN SAID ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF LABOR, SEPTEMBER 6, 1940:

I HAVE YOUR LETTER OF AUGUST 12, 1940, AS FOLLOWS:

THE ACT MAKING APPROPRIATIONS FOR THE DEPARTMENT OF LABOR, THE FEDERAL SECURITY AGENCY, AND RELATED INDEPENDENT AGENCIES, FOR THE FISCAL YEAR ENDING JUNE 30, 1941, AND FOR OTHER PURPOSES PROVIDES IN SECTION 702 AS FOLLOWS:

"NONE OF THE FUNDS APPROPRIATED IN THIS ACT SHALL BE USED TO PAY THE SALARY OF ANY PERSON APPOINTED TO A NON-CIVIL-SERVICE POSITION, UNDER THE APPROPRIATION IN THE RESPECTIVE TITLES IN THIS ACT, IF THE EFFECT OF SUCH APPOINTMENT IS TO INCREASE THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES FROM THE STATE OF RESIDENCE OF ANY SUCH NON-CIVIL-SERVICE APPOINTEE BEYOND THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES TO WHICH THE STATE IS ENTITLED, UNDER THE APPROPRIATIONS IN THE RESPECTIVE TITLES OF THIS ACT, ON A BASIS OF POPULATION: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY POSITION, THE APPOINTMENT OF WHICH IS MADE BY THE PRESIDENT: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO POSITIONS IN THE CIVILIAN CONSERVATION CORPS OUTSIDE THE DISTRICT OF COLUMBIA.' ( ITALICS SUPPLIED.)

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT THE APPORTIONMENT RESTRICTION CONTAINED IN THIS SECTION IS APPLICABLE TO THE APPOINTMENT OF AN ATTORNEY FROM A CIVIL-SERVICE REGISTER TO A POSITION IN A FIELD OFFICE OF THE WAGE AND HOUR DIVISION OF THIS DEPARTMENT, WHICH POSITION IS EXCEPTED BY SCHEDULE A OF THE CIVIL SERVICE RULES FROM THE CIVIL-SERVICE REQUIREMENTS, RELATING TO APPOINTMENTS, OF SECTION 4 OF THE FAIR LABOR STANDARDS ACT OF 1938 (52 STAT. 1060, U.S. CODE, TI. 29, SECS 201-219).

IT WILL BE NOTED THAT THE PROHIBITION OF SECTION 702 EXTENDS TO THE USE OF THE FUNDS APPROPRIATED IN THE ACT TO PAY THE SALARY OF ANY PERSON "APPOINTED TO A NON-CIVIL-SERVICE ITION.' IT WOULD APPEAR THAT UNDER APPLICABLE DECISIONS OF THE ATTORNEYS GENERAL THE POSITION OF AN ATTORNEY APPOINTED TO AN EXCEPTED POSITION IN ONE OF THE FIELD OFFICES OF THE WAGE AND HOUR DIVISION IS A NON-CIVIL-SERVICE POSITION, EVEN THOUGH SUCH APPOINTMENT IS FILLED FROM A CIVIL-SERVICE REGISTER. IN TWO OPINIONS OF JUNE 10, 1932, ATTORNEY GENERAL MITCHELL RULED (37 OP. ATTY. GEN. 7, 15) THAT ALTHOUGH AN EXCEPTED POSITION WAS FILLED BY ORIGINAL APPOINTMENT FROM A CIVIL-SERVICE REGISTER OF ELIGIBLES, SUCH EMPLOYEE DOES NOT ACQUIRE A STATUS PROTECTING HIM FROM REMOVAL FROM SUCH EXCEPTED POSITION, AND, WHILE HOLDING SUCH EXCEPTED POSITION, THE EMPLOYEE IS NOT ENTITLED TO THE BENEFITS OF THE CIVIL SERVICE RETIREMENT ACT. IN 37 OP. ATTY. GEN. 7 IT WAS SAID (P. 13):

"WHEN CONGRESS PROVIDES THAT A POSITION SHALL NOT BE SUBJECT TO THE PROVISIONS OF THE CIVIL SERVICE ACT AND RULES, IT DISCLOSES ITS INTENTION THAT A PERSON APPOINTED TO SUCH A POSITION SHALL NOT BE ENTITLED TO THE BENEFITS OF THE CIVIL SERVICE ACT AND RULES WITH RESPECT TO HIS EMPLOYMENT IN THE EXCEPTED POSITION. ACCORDINGLY, HE IS NOT WHILE HOLDING SUCH POSITION ENTITLED TO THE BENEFITS OF THE RETIREMENT ACT NOR TO SECURITY OF TENURE HE WOULD HAVE ENJOYED HAD THE POSITION NOT BEEN EXCEPTED BY LAW. BUT THERE IS NOTHING IN THE ACTION OF CONGRESS IN EXCEPTING THE POSITION BY LAW WHICH INDICATES A PURPOSE OF CONGRESS THAT THE EMPLOYEE SHALL NOT BE ENTITLED TO ACQUIRE OR RETAIN A STATUS UNDER THE CIVIL-SERVICE LAWS. SUCH A STATUS HAS NO EFFECT UPON HIS TENURE OR RIGHTS WITH RESPECT TO THE EXCEPTED-BY-LAW POSITION, AND IS IN NO WAY INCONSISTENT WITH THE STATUTORY PROVISION THAT THE POSITION SHALL NOT BE SUBJECT TO THE CIVIL SERVICE ACT OR RULES.'

THE OPINION THEN HELD THAT THE PERSON APPOINTED TO A NON-CIVIL SERVICE POSITION WOULD BECOME ELIGIBLE FOR SUBSEQUENT TRANSFER, PROMOTION, OR REINSTATEMENT TO A POSITION IN THE CLASSIFIED CIVIL SERVICE.

IN 37 OP. ATTY. GEN. 15, IT WAS HELD THAT A NON-CIVIL-SERVICE EMPLOYEE IN A POSITION EXCEPTED BY SCHEDULE A OF THE CIVIL SERVICE COMMISSION'S RULES COULD NOT BE GIVEN A CIVIL-SERVICE STATUS IN THE EXCEPTED POSITION SO AS TO MAKE HIM SUBJECT TO THE RETIREMENT ACT.

THE QUALIFICATION OF THE PROHIBITION PROVIDED BY SECTION 702 IS THAT THE EFFECT OF AN APPOINTMENT TO A NON-CIVIL-SERVICE POSITION MUST NOT INCREASE THE NUMBER OF "NON-CIVIL-SERVICE EMPLOYEES" FROM THE STATE OF RESIDENCE OF SUCH "NON-CIVIL-SERVICE APPOINTEE" BEYOND THE NUMBER TO WHICH SUCH STATE IS ENTITLED ON THE BASIS OF POPULATION. THUS, ALTHOUGH THE ATTORNEY APPOINTED TO A POSITION EXCEPTED BY SCHEDULE A IS CLEARLY APPOINTED TO A "NON-CIVIL-SERVICE POSITION," IT IS NOT CLEAR WHETHER OR NOT, WHILE HE IS OCCUPYING SUCH POSITION, HE IS A "NON-CIVIL-SERVICE EMPLOYEE.' 37 OP. ATTY. GEN. 7 INDICATES THAT AN APPOINTEE TO AN EXCEPTED POSITION HAS SOME STATUS AS A CIVIL-SERVICE EMPLOYEE IN THAT HE MAY SUBSEQUENTLY BE TRANSFERRED, PROMOTED, OR REINSTATED TO A POSITION IN THE CLASSIFIED CIVIL SERVICE. HOWEVER, WHILE HE IS EMPLOYED IN THE EXCEPTED POSITION, HE IS NOT ENTITLED TO THE BENEFITS OF THE CIVIL SERVICE ACT AND RULES. IT MAY BE THAT CONGRESS, IN ENACTING SECTION 702, USED THE LANGUAGE "NON-CIVIL SERVICE EMPLOYEES" IN THE STRICT SENSE OF EXCLUDING ONLY CIVIL-SERVICE EMPLOYEES EMPLOYED IN CIVIL-SERVICE POSITIONS. THUS, IN THE FINAL CONFERENCE REPORT ON SECTION 702 IT WAS STATED WITH RESPECT TO AMENDMENT NO. 35 (THE CONTROVERSIAL SECTION 702/---

"RESTORES LANGUAGE INSERTED BY THE HOUSE REQUIRING APPORTIONMENT ON THE BASIS OF POPULATION OF NON-CIVIL-SERVICE POSITIONS IN THE AGENCIES PROVIDED FOR IN THE BILL * * *.' ( ITALICS SUPPLIED.)

THE LEGISLATIVE HISTORY OTHERWISE INDICATES AN INTENTION BY CONGRESS TO REQUIRE STRICT APPORTIONMENT OF NON-CIVIL-SERVICE POSITIONS. IF THE ATTORNEY APPOINTED FROM A CIVIL-SERVICE REGISTER TO AN EXCEPTED POSITION IS NOT A CIVIL-SERVICE EMPLOYEE WHILE OCCUPYING THAT POSITION, THE APPORTIONMENT RESTRICTION OF SECTION 702 WOULD APPEAR TO BE APPLICABLE TO HIS APPOINTMENT.

SECTION 702 OF THE ACT OF JUNE 26, 1940, PUBLIC, NO. 665, 54 STAT. 597, QUOTED IN YOUR LETTER, HAS THE EFFECT OF REQUIRING THE APPORTIONMENT OF POSITIONS OF ALL NON-CIVIL-SERVICE PERSONNEL, WITH THE EXCEPTIONS EXPRESSLY MENTIONED IN THE ACT, WHOSE SALARIES ARE PAID FROM THE FUNDS APPROPRIATED BY THE ACT, AND IS APPLICABLE TO THE FIELD SERVICE AS WELL AS TO THE DEPARTMENTAL SERVICE. COMPARE THE PROVISIONS OF THE CIVIL SERVICE ACT OF JANUARY 16, 1883, 22 STAT. 403, AND RULE VII, SECTION 2, OF THE CIVIL-SERVICE REGULATIONS, EXECUTIVE ORDER NO. 7915, DATED JUNE 24, 1938, LIMITING APPORTIONMENT TO APPOINTMENTS AT WASHINGTON. THE TERM "NON-CIVIL -SERVICE" IS USED IN THE STATUTE TO DESCRIBE "POSITION," "EMPLOYEES," AND "APPOINTEE," AND EVIDENTLY IS INTENDED TO BE USED TO DISTINGUISH POSITIONS, EMPLOYEES, AND APPOINTEES WITHIN THE CLASSIFIED CIVIL SERVICE FROM POSITIONS, EMPLOYEES, AND APPOINTEES NOT WITH THE CLASSIFIED CIVIL SERVICE. SEE IN THIS CONNECTION THE STATEMENT APPEARING IN HOUSE OF REPRESENTATIVES REPORT NO. 1822 ON BILL H.R. 9007, WHICH BILL BECAME THE APPROPRIATION ACT HERE IN QUESTION, AS FOLLOWS:

DATA SUPPLIED TO THE COMMITTEE AT ITS REQUEST INDICATES THAT IN SOME OF THE AGENCIES, APPROPRIATIONS FOR WHICH ARE CARRIED IN THIS BILL, THERE HAS APPARENTLY BEEN NO EFFORT WHATEVER TO EQUITABLY DISTRIBUTE AMONG RESIDENTS OF THE VARIOUS STATES POSITIONS THAT ARE EXEMPT FROM THE OPERATION OF THE CIVIL-SERVICE LAWS. IN ONE UNIT EMPLOYING A CONSIDERABLE NUMBER OF ATTORNEYS, APPROXIMATELY 45 PERCENT OF THE TOTAL NUMBER WERE RESIDENTS OF ONLY TWO STATES. THE COMMITTEE IS CONFIDENT THAT THE HOUSE WITH KNOWLEDGE OF SUCH A SITUATION EXISTING, WOULD NOT DESIRE TO COUNTENANCE ITS CONTINUANCE. A PROVISION HAS BEEN INSERTED IN THE BILL, THEREFORE, PREVENTING THE USE OF ANY FUNDS APPROPRIATED IN THE ACT FOR THE PAY OF ANY EMPLOYEES HEREAFTER APPOINTED IF THEIR STATE OF RESIDENCE IS ALREADY OVERAPPORTIONED. BY THE TERMS OF THE LANGUAGE OF THE LIMITATION, THE APPORTIONMENT WILL BE MADE SEPARATELY UNDER EACH TITLE OF THE BILL AND THE NET RESULT WILL BE MORE EQUITABLY TO DISTRIBUTE AMONG RESIDENTS OF ALL THE STATES THE BENEFITS OF POSITIONS EXEMPT FROM THE CIVIL-SERVICE LAWS.

SECTION 4 (B) OF THE FAIR LABOR STANDARDS ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1061, PROVIDES IN PERTINENT PART, AS FOLLOWS:

THE ADMINISTRATOR MAY, SUBJECT TO THE CIVIL-SERVICE LAWS, APPOINT SUCH EMPLOYEES AS HE DEEMS NECESSARY TO CARRY OUT HIS FUNCTIONS AND DUTIES UNDER THIS ACT AND SHALL FIX THEIR COMPENSATION IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED. * * *

UNDER THAT PROVISION OF THE STATUTE ATTORNEYS, AS WELL AS ALL OTHER EMPLOYEES OF THE WAGE AND HOUR DIVISION, ARE REQUIRED TO BE APPOINTED IN ACCORDANCE WITH THE CIVIL-SERVICE LAWS AND REGULATIONS. SCHEDULES A AND B ARE PART OF THE CIVIL-SERVICE REGULATIONS, BUT, CONTRARY TO THE STATEMENT IN THE SECOND PARAGRAPH OF YOUR LETTER, THE POSITION OF ATTORNEY IS NOT NOW INCLUDED UNDER EITHER SCHEDULE A OR B. SEE EXECUTIVE ORDER NO. 8043, DATED JANUARY 31, 1939, AND THE AMENDMENTS THERETO. BY EXECUTIVE ORDER NO. 8044, DATED JANUARY 31, 1939, THE PRESIDENT SUSPENDED AND MADE INOPERATIVE EXECUTIVE ORDER NO. 7916 OF JUNE 24, 1938, SO FAR AS IT COVERED INTO THE COMPETITIVE CLASSIFIED CIVIL SERVICE CERTAIN CLASSES OF POSITIONS, INCLUDING "PROFESSIONAL AND SCIENTIFIC POSITIONS," AND APPOINTED A SPECIAL COMMITTEE TO STUDY METHODS FOR SELECTING SAID CLASSES OF PERSONNEL FOR THE CIVIL SERVICE. THE EFFECT OF THE EXECUTIVE ORDER LAST CITED IS TO EXCEPT ATTORNEYS AND THE OTHER CLASSES OF PERSONNEL SPECIFIED IN SAID ORDER FROM THE COMPETITIVE CLASSIFIED CIVIL SERVICE PENDING THE PRESIDENT'S APPROVAL OF A METHOD FOR THEIR SELECTION. IT HAS BEEN INFORMALLY ASCERTAINED FROM THE CIVIL SERVICE COMMISSION THAT, DURING THE INTERIM, A PROCEDURE HAS BEEN ADOPTED FOR APPROVING APPOINTMENTS OF ATTORNEYS AS TO EXCEPTED POSITIONS.

THERE IS NOTHING IN EXECUTIVE ORDER NO. 8044 DATED JANUARY 31, 1939, WHICH HAS THE EFFECT OF SUSPENDING OR MAKING INOPERATIVE THE BELOW QUOTED PROVISIONS OF RULE II 3 (D), OF THE CIVIL-SERVICE RULES AND REGULATIONS PROMULGATED IN EXECUTIVE ORDER NO. 7915, DATED JUNE 24, 1938:

THE PROPER APPOINTING OFFICER MAY FILL ANY POSITION NAMED IN SCHEDULE A OR SCHEDULE B, OR ANY OTHER EXCEPTED POSITION, AS CLASSIFIED POSITIONS ARE FILLED, IN WHICH CASE THE PERSON SO APPOINTED SHALL BE ELIGIBLE FOR TRANSFER, REINSTATEMENT, OR PROMOTION TO POSITIONS IN THE CLASSIFIED SERVICE, SUBJECT TO THE PROVISIONS OF THESE RULES. THE INCUMBENT OF ANY EXCEPTED POSITION SO FILLED WILL NOT BE ENTITLED TO PROTECTION AGAINST REMOVAL AFFORDED THESE RULES; NOR WILL THE INCUMBENT OF ANY EXCEPTED-BY- LAW POSITION SO FILLED BE ENTITLED TO THE BENEFITS OF THE CIVIL SERVICE RETIREMENT ACT SOLELY BY VIRTUE OF SUCH EMPLOYMENT. ( ITALICS SUPPLIED.)

UNDER THE PROVISIONS OF SECTION 4 OF THE FAIR LABOR STANDARDS ACT OF 1938, SUPRA, AND THE QUOTED CIVIL-SERVICE RULE, IT IS WITHIN THE DISCRETION OF THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION TO SELECT ATTORNEYS FROM A CIVIL-SERVICE REGISTER. HOWEVER, THE SELECTION OF AN ATTORNEY BY THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION FROM A CIVIL- SERVICE REGISTER IN ACCORDANCE WITH CIVIL-SERVICE RULE II 3 (D), ABOVE QUOTED, DOES NOT OPERATE TO CHANGE THE STATUS OF THE POSITION FROM AN EXCEPTED OR NON-CIVIL-SERVICE POSITION TO A CLASSIFIED CIVIL SERVICE POSITION. THE APPOINTMENT IN SUCH CASE WOULD BE TO A NON-CIVIL SERVICE POSITION WITHIN THE MEANING OF THE FIRST CLAUSE OF THE APPROPRIATION RESTRICTION QUOTED ABOVE. FURTHERMORE, AN ATTORNEY OF THE WAGE AND HOUR DIVISION SELECTED IN ACCORDANCE WITH CIVIL-SERVICE RULE II 3 (D) WOULD NOT, BY THE TERMS OF THE REGULATION, ACQUIRE THE SAME STATUS AS OTHER CLASSIFIED CIVIL-SERVICE EMPLOYEES. HENCE, IT MUST BE CONCLUDED THAT HE WOULD REMAIN A NON-CIVIL-SERVICE EMPLOYEE WITHIN THE MEANING OF THE STATUTE AND HIS APPOINTMENT WOULD BE SUBJECT TO APPORTIONMENT PURSUANT TO THE TERMS OF THE APPROPRIATION ACT HERE INVOLVED.