Whether Department of Justice Attorney-Hiring Procedures Give Effect to the Veterans Preference Act

• Court: Department of Justice Office of Legal Counsel
• Decided: April 10, 1979
• Status: Published

Opinion

April 10, 1979

79-22 MEMORANDUM OPINION FOR THE DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT

Veterans Preference Act (5 U.S.C. §§ 2108, 3309-3320)—Hiring Procedures for Attorneys— Excepted Service—Preference Hiring of Eligible Veterans

This responds to your request for our opinion whether the Department o f Justice attorney-hiring procedures give effect to the Veterans Preference Act. 5 U .S.C . §§ 2108, 3309-3320. You also ask whether the Office o f Personnel Management (O PM )1 may prescribe an examination procedure (particularly a numerical rating system) for the selection o f at­ torneys. For the outlined reasons, we conclude: first, that this Depart­ m ent’s attorney-hiring practices take into account fully the preferences that Congress afforded veterans; second, that OPM is barred by its ap­ propriation legislation from imposing a rating or other examination system on the hiring o f attorneys within the executive branch. In the competitive civil service, known also as the classified civil service, veterans preference is implemented by adding a designated num ber o f points to an eligible veteran’s examination score. Section 3 o f the 1944 Veterans Preference Act, codified at 5 U.S.C. § 3309, prescribes the following point system in the competitive service: A preference eligible receiving a passing grade in an examination for entrance into the competitive service is entitled to be assigned additional points above his earned rating, as follows—

1 The Civil Service Reform Act o f 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978), and Reorganization Plan N o. 2 o f 1978 (43 F.R. 36037) divided the functions o f the Civil Service Commission between two new agencies—the Office o f Personnel Management (OPM ) and an independent Merit System Protection Board. Since the legislative history and Executive orders cited herein refer to the Civil Service Commission, we will use the terms “ Commis­ sion” and “ O P M ” interchangeably.

140 (1) a preference eligible under section 2108(3)(c)-(G) o f this title— 10 points; and (2) a preference eligible under section 2108(3)(A) o f this title—5 points. Section 2108 o f title 5 defines a “ preference eligible” as an honorably discharged veteran who served in the Armed Forces under the conditions set forth in that section. Certain disabled veterans and, in some cases, their relatives or survivors are entitled to the 10-point preference provided by § 3309, while certain nondisabled veterans are entitled to a 5-point preference. Although this point system was not m andated by statute until June 27, 1944, it had been implemented in the executive branch since March 3, 1923, pursuant to Executive Order No. 3801, as amended. The report of the Senate Civil Service Committee on the 1944 Veterans Preference Act states that: Section 3 [of the Act] would enact into law the 10-point prefer­ ence for service-connected disabled veterans and the 5-point preference for non-disabled veterans presently contained in civil- service rules. [S. Rept. 907, 78th Cong., 2d sess. p. 2 (1944).] The 1944 Act merely gave legislative sanction to the then-existing point system. Although § 3309 applies only to the competitive service, there is a sug­ gestion in 5 U .S.C . § 3320 that such a system is required in the excepted service. This provision reads in pertinent part as follows: The nominating or appointing authority shall select for appoint­ ment to each vacancy in the excepted service in the executive branch * * * from the qualified applicants in the same manner and under the same conditions required for the competitive serv­ ice by sections 3308-3318 o f this title. Since the point system is required in the competitive service by § 3309, it would seem that the excepted service must also follow such a procedure. Upon closer scrutiny, however, this is not the case. Section 3320 in its pres­ ent form results from Pub. L. No. 89-554, 80 Stat. 378, 422, which com ­ bined and restated for clarity §§ 9 ,2 and 20 o f the 1944 Veterans Preference Act. (Section 20 merely exempted the legislative and judicial branches, as well as advice and consent positions in the executive branch.) The language o f § 9 o f the 1944 Act reads in pertinent part as follows: In the unclassified Federal * * * civil service * * * the nom i­ nating o r appointing officer o r employing official shall make selection from the qualified applicants in accordance with the provisions o f this act. This language is less suggestive concerning a point system in the excepted service than the “ clarifying” language o f § 3320. Further, § 9 indicates an

, 1 Section 9, first codified at 5 U .S.C . § 858, is now codified at 5 U .S.C . § 3320.

141 intent to require that employee preference be extended to those classes of preference eligibles listed in the Act. Section 2 o f the 1944 Act provides in pertinent part that, with respect to applicants for Federal employment in the unclassified civil service as well as in the classified civil service, “ preference shall be given” to preference eligibles. The m ethod o f imple­ menting this preference was spelled out for the competitive service through the point system. However, the general direction o f § 2, that a preference be granted to eligible veterans, is reflected in the language concerning application o f the preference in the excepted service. Section 3309’s system was amended in 1953 to provide, inter alia, that preference points would be given only to those veterans receiving a passing score on an examination. 67 Stat. 581. Before this amendment the points were added to preference eligible scores if the points would bring the veterans up to the qualifying score. Significantly, as stated in the legisla­ tive history, the amendm ent would affect “ the veteran in the competitive civil service system.” S. Rept. 679, 83rd Cong., 1st sess. 1 (1953). The drafters o f the Senate report apparently believed that the point system was not required in the excepted service. Moreover, the essential distinction between the competitive and ex­ cepted service is that positions in the former are filled on the basis o f com ­ petitive examinations while those in the latter are not. See 5 U.S.C. §§ 2102, 2103.3 The Act contem plates continuation o f the distinction. It makes reference to the unclassified service as well as the classified service. If examinations were required, it would eliminate the unclassified service. Therefore, the Veterans Preference A ct’s reference to unclassified service would be inaccurate if it meant that all positions filled pursuant to the Act should be subject to examination. Since there was no intent to erase this distinction and since the language o f the Act itself requires that points be added only to an applicant’s earned rating resulting from an “ examina­ tio n ,” 4 we must conclude that the point system is not required in the unclassified service. In considering the questions whether the D epartm ent’s attorney-hiring procedure gives effect to the Veterans Preference Act and whether OPM could require that the Departm ent implement a numerical rating system for attorneys, we now turn to a historical examination o f attorney-hiring and veterans preference.

I. The History of Attorney-Hiring and Veterans Preference Since 1941 President Franklin D. Roosevelt, by Executive Order No. 8044 (1939),

’ These provisions also resulted from P ub. L. N o. 89-554, supra. They merely earned for­ ward, without substantive change, their predecessor provisions (22 Stat. 403, 406 (1883)) with respect to the competitive service. The earlier provisions noted this key distinction between the competitive and noncom petitive service. 4 It might be suggested that a numerical rating system does not constitute an examination. However, we conclude in the discussion that follows that it does.

142 appointed a committee to study and make recommendations on, inter alia, how civil service procedures should apply to attorneys. In February 1941, that committee submitted its report entitled Report o f the President’s Committee on Civil Service Improvement, H. Doc. 118, 77th Cong., 1st sess. (1941). The report presented two principal views—Plan A and Plan B—on attomey-selection procedures.’ Plan B recommended, at least in the case o f inexperienced attorneys, that they be examined and rated com ­ petitively. Taking a contrary view, the authors o f Plan A reasoned: [I]t seems to us highly unwise to force the unique problem o f the attorney positions into any general pattern simply for the sake of uniformity. Wise administration o f the civil service, as o f other or­ ganizations, may often indicate the need for flexibility and ad hoc adjustm ents, even at the cost o f uniformity and symmetry * * *. We therefore have considered and presented our recom m enda­ tions on the assumption that the attorney positions present a unique problem in the professional service, which must be solved individually rather than by application o f a general formula. [H. Doc. 118, supra, at 32-33.] Plan A ’s proponents therefore recommended against a rating system for at­ torneys. They also objected to the application to attorneys o f the com peti­ tive service procedure o f certifying three applicants for each position to the appointing officer. See 5 U.S.C. § 3318. It was stated in this connection: We feel that any mechanical ranking and certification would operate in an undesirably arbitrary manner, that the superior of­ ficer who is responsible for the appointee’s work should have more voice in his selection, and that no principle o f civil service or wise administration requires that there be an assumption o f absolute accuracy in rating the candidates all o f whom by defini­ tion are qualified to do legal work o f a high order. [H. Doc. 118, supra, at 38.] [Emphasis added.] President Roosevelt in 1941 adopted Plan A in Executive O rder No. 8743. See 5 U.S.C. § 3301 note. The order directed that all attorney positions be brought into the competitive service and created a Board o f Legal Ex­ aminers, which was to establish rules and procedures for attorney selection in the Federal Government. Subsection 3(d) set forth the functions o f the Board as follows: The Board, in consultation with the Civil Service Commission, shall determine the regulations and procedures under this section governing the recruitment and examination o f applicants for at­ torney positions, and the selection, appointm ent, prom otion, and transfer o f attorneys in the classified service.

’ Urging Plan A were Justice Reed, the com m ittee’s chairm an, Justice Frankfurter, A t­ torney General Jackson, and Mr. G ano D unn. Justice McReynolds, Leonard D. W hite, and General Robert E. W ood, urged Plan B.

143 The order also directed the Commission to establish a register o f eligibles from which attorney positions were to be filled. A nd, § 3(0 provided that: registers shall not be ranked according to the ratings received by the eligibles, except that persons entitled to veterans’ prefer­ ence * * * shall be appropriately designated thereon. Thus, while an examining procedure was established to determine minimum attorney qualifications, a rating system was prohibited. “ The examination consisted o f a written test, an evaluation o f the appli­ cant’s records, and oral examinations before the state and local boards.” U.S. Board o f Legal Examiners, R eport to the President, 1941-1944, p. 34. The report further stated at p. 36: Numerical grades were not assigned upon the examination as a whole, but only upon the written test. The applicants who were recommended for inclusion upon the register were, however, given ratings o f “ O utstanding,” “ Excellent,” “ G ood,” and “ Fair” on the basis o f recommendations from the various ex­ amining boards. These descriptive ratings were shown upon the register list. The list also showed the length o f professional ex­ perience o f each individual included. The examination score determined who would be placed on the register of eligibles. The register was distributed to all government agencies and, as appointing agencies, they were given “ unrestricted choice from among the eligibles” with respect to beginning attorney positions. Id. at 37. See also, Hearing on H .R. 1025, a bill to create a Board o f Legal Examiners in the Civil Service Commission, before a subcommittee o f the Senate Com­ mittee on Civil Service, 78th Cong., 1st sess., at 57-59 (1943). But at the same time the register directed the attention o f appointing officers to their duty to prefer preference eligibles in making appointm ents. Id. at 47-48. However, no guidance was provided for the appointing officers to fulfill this duty, and thus veterans preference points were added to the written examination score as a third o f the total examining process. Moreover, the preference points were used only in the determ ination o f the applicants’ placement on the register. Consequently, the points clearly benefitted only those preference eligibles who received marginal examination scores and needed the points to qualify for listing on the register. Preference points were not used in the most im portant aspect o f the employment process— the actual appointm ent. A ppointing agencies were merely instructed to “ prefer” preference eligibles over other applicants. Preference at the ap­ pointing stage could only have been implemented by considering it as a positive factor in the employment decision. The Board o f Legal Examiners was destined to operate for but a short time. In 1942 the Senate proposed the following amendment to the Inde­ pendent Offices A ppropriation Act o f 1943: [N]o part o f any appropriation in this act shall be available for the salaries and expenses o f the Board o f Legal Examiners created in the Civil Service Commission by Executive Order

144 No. 8743 o f April 23, 1941. [88 C ongressional Record 3822.] However, this language was deleted as part o f a House-Senate com ­ promise. In lieu o f the am endm ent, the appropriation available for the board was limited to $80,000 “ with the understanding that such authoriza­ tion [was] not to be regarded as giving permanent status to this activity and that appropriations for future years [would] be dependent upon passage by the Congress o f substantive law authorizing a Board o f Legal Examiners.” H. Rept. 2259, 77th Cong., 2d Sess. (1942); statem ent o f House Managers 88 C ongressional R ecord 5541. As the above-quoted language indicates, this restriction was sought by those Members o f Congress who believed that the Board should have been created by legislation rather than by Executive order. Although such legis­ lation later passed the House (89 C o n g r e s s i o n a l R e c o r d 3565), it subsequently died in the Senate Civil Service Committee. See 90 C o n g r e s ­ s i o n a l R e c o r d 2659-60. W hether the board created by Executive Order No. 8743 should be con­ tinued was debated in the legislative consideration o f the Independent O f­ fices Appropriation Act o f 1944. It is there made clear that the intent o f the restriction was to prohibit “ any” civil service examination o f “ lawyers.” 90 C o n g r e s s i o n a l R e c o r d 2659 (1944); see also 90 C o n ­ g r e s s i o n a l R e c o r d 2660-61. The prohibition was based largely on the view that the Commission has no business in determining the “ relative qualifications” o f lawyers. 90 CONGRESSIONAL R e c o r d 2661. The under­ lying premise was that the Commission was not com petent to pass on their professional qualifications. 90 C o n g r e s s i o n a l R e c o r d 2661 (1944).6 The restriction thus became law. It reads as follows: [N]o part o f any appropriation in this Act shall be available for the salaries and expenses o f the Board o f Legal Examiners created in the Civil Service Commission by Executive Order Numbered 8743 o f April 23, 1941. [57 Stat. 173 (June 26, 1943)]7 A virtually identical restriction has been included in each subsequent Com ­ mission appropriation since 1944. The 1979 appropriation governing O PM ’s present activities includes the following: No part o f the appropriation herein made to the Civil Service Commission shall be available for the salaries and expenses o f the Legal Examining Unit o f the Commission, established pur­ suant to Executive Order 9358 o f July 1, 1943 [8 F.R. 9175], or

6 Although it was suggested that a legal examining board for Executive branch attorney positions be established in the Justice Departm ent (90 C o n g r e s s i o n a l R e c o r d 2661 (1944)), this has never been done. ’ This restriction placed attorney positions in a peculiar situation. They were, pursuant to Exec. Order No. 8743, in the competitive service. However, because o f the restriction the Commission could not conduct attorney examinations. The restriction was included in each subsequent Commission appropriation and finally, in 1947, President Trum an, by Exec. O rder 9830, placed all attorney positions in the excepted service.

145 any successor unit o f like purpose. [Pub. L. No. 95-459, 95th C ong., 2d Sess. (1978), 92 Stat. 1007.]8 Thus, it is plain that O PM may not, in light o f the continuing appropria­ tion restriction, require examinations for attorneys.’ A rating system such as has been suggested for attorney-hiring is one form o f an examination, and was frequently used to “ examine” for attorney positions. This pro­ cedure is denom inated an “ unassembled exam ination.” The unassembled examinations, long used for skilled-trades posi­ tions, were adopted for use in examinations for high-grade ad­ ministrative and professional positions. In the unassembled ex­ am ination the com petitor does not take a written examination, but is rated instead on his knowledge and experience as evidenced by his education and by the positions he has previously held. [U.S. Civil Service Commission, History o f the Federal Civil Service: 1789 to the Present (1941), at p. 77] The Board o f Legal Examiners itself recognized such examinations for at­ torney positions in the civil service. U.S. Board o f Legal Examiners Report, supra, pp. 14, 27, and Appendix H. In fact, one phase o f the B oard’s examining procedures—the evaluation o f the applicant’s records—was an unassembled examination. Therefore, an attorney-rating system am ounts to a civil service examination and for that reason may not be required by O PM . The participants in the debate on the 1944 appropriations restriction did not fail to discern its effect on veterans preference. Senator Burton, for ex­ ample, stated that the term ination o f civil service examinations for at­ torneys would “ do away with veterans’ preference.” 90 C o n g r e s s i o n a l R e c o r d 2660-61 (1944). Although we agree with Senator Burton insofar as the ban on examination o f attorneys denies the ability to impose a numerical rating system, we do not agree that implementation o f the Veterans Preference Act is possible without such a system.

II. The D epartm ent’s Present Attorney-Hiring Procedures The Departm ent routinely applies the Veterans Preference Act in a meaningful fashion to attorney-hiring. All Justice Departm ent employ­ ment applications ask whether the applicant is claiming veterans preference. T hat an applicant is a preference eligible is weighed as a

* T he reference to the “ Legal Examining Unit o f the Com mission” rather than the Board o f Legal Examiners was occasioned by Exec. O rder N o. 9358, which vested the power o f the Board in the Commission. Some M embers o f Congress had questioned whether the Board should be continued absent specific legislation. T hus, Exec. O rder No. 9358 (1943), trans­ ferred the B oard’s authority to the Commission “ [p]ending action by the Congress with respect to the continuance o f the B oard.” • It might be argued that O PM would not be imposing selection procedures if it merely re­ quired that agencies establish their own procedures. However, if O PM purports to possess the power o f approval or rejection o f such procedures, this would be tantam ount to its im­ position o f selection procedures for attorneys.

146 positive factor in the D epartm ent’s attorney-hiring program ,10 and the veteran is often selected over other attorney applicants. W hen the veteran’s other qualifications place him or her in close com petition, the veteran is preferred over other applicants with substantially equal qualifications. This procedure is consistent with the application o f the Veterans Preference Act in regard to attorney-hiring since 1941. As stated above, Executive Order No. 8743, in prohibiting an attorney-rating system, created a situation in which veterans preference could be implemented only by considering it positively in the employment decision. Congress, in response to the Executive order, rather than requiring a rating system, fur­ ther restricted Commission control over attorney selection by barring the Commission from examining attorneys even to determine minimum qualifications. Thus, Congress implicitly sanctioned the implementation o f the Veterans Preference Act with regard to attorney-hiring by use o f a procedure such as ours. We believe that our attorney-hiring procedure gives full effect to the Veterans Preference Act. O PM may not require the Departm ent to imple­ ment a numerical-rating system, since this is a form o f civil service ex­ amination that O PM is prohibited by its appropriation restriction from requiring.

Jo h n M . H arm on Assistant A ttorney General Office o f Legal Counsel

'• The Departm ent is experimenting with a numerical rating system in its H onor Program that is geared toward the hiring o f attorneys directly out o f law school and accounts for approximately 15 percent o f the D epartm ent’s attorney recruitm ent. In this experimental program , veterans do receive additional rating points. In this connection it should be noted that, while O PM is barred by its appropriation legislation from implementing attom ey- examination systems, this bar does not extend to other agencies, not similarly restricted, that might wish to implement or experiment with rating o r other examining systems in their own attorney-hiring procedures.