B-170668, SEP. 30, 1970

B-170668: Sep 30, 1970

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HAMPTON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20. WHOSE COMPENSATION IS NOW BEING APPARENTLY FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1949. PROVIDES IN PERTINENT PART AS FOLLOWS: "THE PRESIDENT IS AUTHORIZED. IS NOW CODIFIED IN CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5. THE BASIC QUESTION TO BE DECIDED CONCERNS THE SENSE IN WHICH THE WORD "MAY" WAS USED IN SECTION 460(B)(4). WHETHER THE WORD IS TO BE CONSTRUED AS MANDATORY OR PERMISSIVE IS TO BE DETERMINED IN EACH CASE FROM THE APPARENT INTENTION AS GATHERED FROM THE CONTEXT. CONSIDERING THE WHOLE INSTRUMENT IN WHICH IT IS USED. ORDINARILY IT IS CONSTRUED IN A PERMISSIVE SENSE UNLESS NECESSARY TO GIVE EFFECT TO THE INTENT IN WHICH IT IS USED.

B-170668, SEP. 30, 1970

SELECTIVE SERVICE SYSTEM - LOCAL AND APPEAL BOARD EMPLOYEES - CLASSIFICATION ACT DECISION CONCLUDING THAT EMPLOYEES OF LOCAL BOARDS AND APPEAL BOARDS MAY NOT BE PLACED UNDER THE CLASSIFICATION STATUTE BY ADMINISTRATIVE ACTION IN VIEW OF THE SPECIFIC LANGUAGE IN 50 APP. U.S.C. 460(B)(4) (SUPP. V) EXEMPTING SUCH EMPLOYEES FROM THE CIVIL SERVICE REGULATIONS.

TO MR. HAMPTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20, 1970, REQUESTING OUR DECISION AS TO WHETHER EMPLOYEES OF SELECTIVE SERVICE LOCAL BOARDS AND APPEAL BOARDS, WHOSE COMPENSATION IS NOW BEING APPARENTLY FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, MAY BE PLACED UNDER THE CLASSIFICATION STATUTE BY ADMINISTRATIVE ACTION.

SECTION 10(B)(4) OF THE SELECTIVE SERVICE ACT OF 1948, AS AMENDED, CONTINUED BY THE MILITARY SELECTIVE SERVICE ACT OF 1967, AS CODIFIED IN 50 APP. U.S.C. 460(B)(4) (SUPP. V), PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE PRESIDENT IS AUTHORIZED--

"(4) TO APPOINT AND TO FIX, IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1949, AS AMENDED, THE COMPENSATION OF SUCH OFFICERS, AGENTS AND EMPLOYEES AS HE MAY DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS TITLE *** PROVIDED, THAT THE COMPENSATION OF EMPLOYEES OF LOCAL BOARDS AND APPEAL BOARDS MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1949, AS AMENDED *** " THE PRESIDENT, BY EXECUTIVE ORDER NO. 9979, JULY 20, 1948, DELEGATED HIS AUTHORITY WITH REGARD TO THE APPOINTMENT AND FIXING OF SALARIES OF OFFICERS, AGENTS AND EMPLOYEES OF THE SELECTIVE SERVICE SYSTEM TO THE DIRECTOR OF SELECTIVE SERVICE. THE FORMER CLASSIFICATION ACT OF 1949, AS AMENDED, IS NOW CODIFIED IN CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5, UNITED STATES CODE. WE UNDERSTAND THE DIRECTOR OF SELECTIVE SERVICE PROPOSES TO PLACE THE EMPLOYEES OF LOCAL BOARDS AND APPEAL BOARDS UNDER THE POSITION CLASSIFICATION AND GENERAL SCHEDULE PAY RATE PROVISIONS OF TITLE 5.

THE STATUTE REGARDING THE COMPENSATION OF LOCAL AND APPEAL BOARD EMPLOYEES STATES THAT THE COMPENSATION OF SUCH EMPLOYEES MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1949. THE BASIC QUESTION TO BE DECIDED CONCERNS THE SENSE IN WHICH THE WORD "MAY" WAS USED IN SECTION 460(B)(4), QUOTED ABOVE. THE VERB "MAY" MAY BE EMPLOYED IN EITHER A PERMISSIVE OR A MANDATORY SENSE. WHETHER THE WORD IS TO BE CONSTRUED AS MANDATORY OR PERMISSIVE IS TO BE DETERMINED IN EACH CASE FROM THE APPARENT INTENTION AS GATHERED FROM THE CONTEXT, CONSIDERING THE WHOLE INSTRUMENT IN WHICH IT IS USED; ORDINARILY IT IS CONSTRUED IN A PERMISSIVE SENSE UNLESS NECESSARY TO GIVE EFFECT TO THE INTENT IN WHICH IT IS USED. SEE MAY, VOLUME 57, CORPUS JURIS SECUNDUM.

THE PROVISIONS IN QUESTION DERIVE FROM VIRTUALLY IDENTICAL LANGUAGE CONTAINED IN SECTION 9(B)(4) OF H. R. 6401, 80TH CONG., 2ND SESS., WHICH WAS PASSED BY THE HOUSE OF REPRESENTATIVES ON JUNE 18, 1948, AS AN AMENDMENT TO S. 2655 (SUBSEQUENTLY ENACTED INTO LAW AS THE SELECTIVE SERVICE ACT OF 1948). THE SENATE REPORT ON THE MEASURE IS INCONCLUSIVE WITH RESPECT TO THE QUESTION AT ISSUE. SENATE REPORT NO. 1268, MAY 12, 1948. HOWEVER, WITH REFERENCE TO COMPENSATION OF THE EMPLOYEES INVOLVED HOUSE REPORT NO. 1881, MAY 7, 1948, STATES THE FOLLOWING AT PAGE 12:

" *** THE EMPLOYEE'S COMPENSATION IS TO BE FIXED FOR LOCAL AND APPEAL BOARDS WITHOUT REGARD TO CIVIL-SERVICE REGULATIONS *** "

WE REGARD THIS STATEMENT AS SPECIFYING THAT THE STATUTORY LANGUAGE ULTIMATELY ENACTED WAS INTENDED UNEQUIVOCALLY BY THE HOUSE OF REPRESENTATIVES TO EXEMPT THE EMPLOYEES OF LOCAL AND APPEAL BOARDS FROM THE CLASSIFICATION LAWS. IN OTHER WORDS, ALTHOUGH THE WORD "MAY" WAS USED, IT WAS INTENDED IN THE MANDATORY SENSE OF "SHALL."

SECTION 10(B)(4) OF S. 2655 AND THE SELECTIVE SERVICE ACT OF 1948 ARE IDENTICAL TO SECTION 9(B)(4) OF H. R. 6401 WITH RESPECT TO THE COMPENSATION OF EMPLOYEES OF LOCAL BOARDS AND APPEAL BOARDS. SINCE THERE IS NOTHING IN THE LEGISLATIVE HISTORY TO INDICATE ANY DISAGREEMENT ON THE PART OF THE SENATE WITH THE INTENT OF THE HOUSE OF REPRESENTATIVES, WE BELIEVE THAT THE EMPLOYEES IN QUESTION ARE REQUIRED TO BE TREATED AS EXEMPT FROM THE PROVISIONS OF THE CLASSIFICATION STATUTE. IN THIS CONNECTION WE NOTE THAT THE EMPLOYEES HAVE BEEN CONSIDERED UNGRADED EMPLOYEES FOR THE PURPOSE OF RECEIVING RETROACTIVE PAY INCREASES. SEE THE ACT OF JUNE 5, 1952, CHAPTER VII, SECTION 701, 66 STAT. 109, AND PAGE 354 OF THE HEARINGS BEFORE THE SENATE COMMITTEE ON APPROPRIATIONS ON H. R. 6947, 82ND CONG., 2ND SESS.

IN VIEW OF THE ABOVE WE ARE OF THE OPINION THAT THE EMPLOYEES OF SELECTIVE SERVICE LOCAL AND APPEAL BOARDS MAY NOT BE PLACED UNDER THE CLASSIFICATION STATUTE BY ADMINISTRATIVE ACTION.

YOU ALSO REQUEST OUR REACTION TO THE VIEW THAT POSITIONS ARE TO BE REGARDED AS EXCEPTED BY LAW REGARDLESS OF THE PERMISSIVE NATURE OF ANY PARTICULAR STATUTORY LANGUAGE EMPLOYED. IN VIEW OF THE FACT THAT THE INTERPRETATION OF A GIVEN STATUTE IN THIS REGARD IS DEPENDENT UPON THE SPECIFIC INTENTION DISCLOSED BY EXAMINATION OF ITS LEGISLATIVE HISTORY AND OTHER RELEVANT CONSIDERATIONS, WE DO NOT BELIEVE IT WOULD BE APPROPRIATE TO PROVIDE A GENERAL RULE IN THE MATTER.