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Federal Personnel Manual System
1PM letter 302-5
SUBJECT: Exemption of Attorney Positions from Procedural Requirements
for Appointments in the Excepted Service
Heads of Departments and independent Establishments:
1. The Office of the Legal Counsel, Department of Justice, has ruled that the Office of Personnel
Management (formerly the Civil Service Commission) is barred by its appropriation act, which
prohibits examining for attorneys, from imposing or approving any rating system for use in hiring
attorneys. A copy of the decision is attached.
2. In line with this ruling, current regulations governing appointments in the excepted service are
being revised to exempt attorney positions. Agencies cannot be required to follow the require-
ments of part 302 of the regulations in developing attorney selection procedures. Agencies are
expected, however, to provide preference to veterans under whatever procedures they use and to
provide veterans, on request, with the reasons for their nonselection for attorney positions.
3. The Justice Department's decision applies only to attorney positions and does not change the
regulations applicable to other positions in the excepted service. Agencies wishing to adopt
ualterntive selection procedures for excepted positions not specifically excluded from coverage
under. part 302 of the regulations must still obtain Office approval as provided in section 302.105, or
muinst renter into a delegation agreement allowing the agency to approve exceptions from the
regulatory requirements, before the alternative procedures may be used.
Arch S. Ramsay
Inservice Placement Branch, Staffing Services, 632-4533
302 Employment in the Excepted Service
CPM FORM 652 1'79
Published in advance
of incorporation in FPM
RETAIN UNTIL SUPERSEDED
Washington, D. C. 20415
September .24, 1979
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,.*'i t, ti.'c. CM' twi Attachment to FPM Ltr 302 -5
pepudnwtd of justice
?Dull;nqton, P.(G. 20530 .1
MEMORANDUM FOR ALAN K. CAMPBELL
Director, Office of Personnel Management
Re: Attorney Hiring and the Veterans'
This responds to your February 2, 1979 request for our
opinion on whether the Department of Justice attorney hiring
procedures give effect to the Veterans' Preference Act. (Public
Law 359, 78th Cong. 2d Sess. (1944); 58 Stat. 387, codified at
5 U.S.C. 2108 and 3309-3320). You have also asked whether
the Office of Personnel Management (OPM) I/ may prescribe an
examination procedure (particularly a numerical rating system)
for the selection of attorneys. We are pleased to respond.
For the reasons that follow it is our conclusion, first, that
this Department's attorney hiring practices do fully take into
account the preferences that Congress has afforded veterans,
and second, that OPM is barred by its appropriations legislation
from imposing a rating or other examination system on the hiring
of attorneys within the Executive Branch.
In the competitive civil service, also called the classi-
fied civil service, the Veterans' Preference is implemented by
adding a designated number of points to an eligible veteran's
examination score. Section 3 of the 1944 Veterans' Preference
Act, codified at 5 U.S.C. 3309, prescribes the following point
system in the competitive service.
I/ The Civil Service Reform Act of 1978, Public Law 95-454, 95th
Cong., 2d Sess. (1978), and Reorganization Plan No. 2 of 1978 (43
Fed. Reg. 36037) divided the functions of the U.S. Civil Service
Commission between two new agencies -- the Office of 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
"Commission" and "OPM" interchangeably.
a 5-point preference.
Although this point system was not mandated by statute
until June 27, 1944, it had been implemented in the Executive
Branch since March 3, 1923 pursuant to President Harding's
Executive Order No. 3801, as amended. In this connection, the
report of the Senate Civil Service Committee on the 1944 Veteranst
Preference Act states that:
Section 3 [of the Act] would enact into law the
10-point preference for service connected dis-
abled veterans and the 5-point preference for
non-disabled veterans presently contained in
Senate Report No. 907, 78th Cong., 2d Sess. p. 2 (1944). The
1944 Act merely gave legislative sanction to the then existing
Although, by its terms, section 3309 applies only to the
competitive service there is a suggestion in 5 U.S.C. 3320 that
such a system is required in the excepted service. This provision
reads in pertinent part as follows:
AttaVp fhtlEMtdgr P;ijA lnting authority .shall select
for appointment 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
service by sections 3308-3318 of this title.
Since the point system is required in the competitive service by
5 3309 it seems at first blush that the excepted service must
also follow such a procedure. Upon closer scrutiny, however, it
may be seen that this is not the case. Section 3320 in its present
form is a result of Public Law 89-554, 89th Cong., 2d Sess. (1966);
80 Stat. 422, which combined and restated for clarity 9, 2/
and 20 of the 1944 Veterans' Preference Act. See 7 of Public
Law 89-554. (Section 20 merely exempts application of the Act
in the Legislative and Judicial Branches as well as advice and
consent positions in the Executive Branch.)
The language of 6 9 of the 1944 Act reads in pertinent
part as follows:
In the unclassified federal civil service .
the nominating or appointing officer or employing
official shall make selection from the qualified
applicants in accordance with the provisions of
This language is far less suggestive that a point system is required
in the excepted service than the "clarifying" language of 3320.
Further, 9 when read with the rest of the Act, particularly 2,
shows that it was intended to require that an employee preference
was to be extended to those classes of preference eligibles listed
in the Act. Section 2 of the 1944 Act provides idn pertinent part
that with respect to applicants for Federal employment in the
unclassified civil service as well as the classified civil service
"preference shall be given" to preference eligibles. The method
of implementing this preference was spelled out for the competitive
service, i.e., the point system. However, the general direction of
2 that a preference be granted to eligible veterans is the
language controlling application of the preference in the excepted
2/ Section 9, first codified at 5 U.S.C. 858, is now codified
at 5 U.S.C. 3320.
a numerical rating system for attorneys we now turn to a historian
examination of attorney hiring and veterans' preference.
3/ These provisions also were a result of Public Law 89-554, mupj
They merely carried forward, without substantive change, their
predecessor provisions (22 Stat. 406) with respect to the competit
service. See section 7 of Public Law 89-554. The earlier provi.4
noted this key distinction between the competitive and noncompetie
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.
Attachment to FPM Ltr. 302-5 (5)
History of Attorney Hiring and Veterans' Preference Since 1941
President Franklin D. Roosevelt, by Executive Order No.
8044 (Jan. 31, 1939), appointed a committee to study and make
recommendations on, among other things, how civil service pro-
cedures should apply to attorneys. In February 1941, that
committee submitted its report entitled'Report of the President's
Committee on Civil Service Improvement, House Document No. 118,
77th Cong., 1st Sess. (1941). The report presented two major
views--Plan A and Plan B-- on attorney selection procedures. 5/
Plan B recommended, at least in the case of inexperienced attorneys,
that they be examined and rated competitively. Taking a contrary
view, the authors of Plan A reasoned:
[I]t seems to us highly unwise to force the
unique problem of the attorney positions into any
general pattern simply for the sake of uniformity.
Wise administration of the civil service, as of
other organizations, may often indicate the need
for flexibility and ad hoe adjustments, even at
the cost of uniformity and symmetry a a &
We therefore have considered and presented
our recommendations on the assumption that the
attorney positions present a unique problem in
the professional service, which must be solved
individually rather than by application of a
House Document, No. 118, supra at 32-33. Plan A's proponents thus
recommended against a rating system for attorneys. They also
objected to the application to attorneys of the competitive service
procedure of certifying three applicants for each position to the
appointing officer. See 5 U.S.C. 3318. It was stated in this
5/ Urging Plan A were Mr. Justice Reed, the committee's chair-
man, Mr. Justice Frankfurter, Attorney General Jackson, and Mr.
Gano Dunn. Messrs. McReynolds, Leonard D. White and General
Robert E. Wood, urged Plan B.
- 5 -
requires that there be an assumption or absolute
accuracy in rating the candidates all of whom
by definition are qualified to do legal work of
a high order.
House Document, No. 118, supra at 38 (emphasis added). President:I
Roosevelt in 1941 adopted Plan A in Executive Order 8743. This
Executive Order is published in the United States Code under the
notes and comments to 5 U.S.C. 3301. That order directed that
all attorney positions be brought into the competitive service
and it created the Board of Legal Examiners which was to establish;
rules and procedures for attorney selection in the Federal Govern-'
ment. Subsection 3(d) of Executive Order No. 8743 set forth the
functions of 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 of applicants for
attorney positions, and the selection, appoint-
ment, promotion, and transfer of attorneys in
the classified service.
The Executive Order also directed the Commission to establish a
register of eligibles from which attorney positions were to be
filled. And, 3(f) of the order directed that:
registers shall not be ranked according to the
ratings received by the eligibles, except that:
persons entitled to veteran preference .
shall be appropriately designated thereon.
Thus, while an examining procedure was sanctioned to determine
minimum attorney qualifications, a rating system was prohibited.
- 6 -
Attachment to FPM Ltr. 302-5 (7)
"The examination consists of a written test, an evaluation
of the applicant's records, and oral examinations before the
state and local boards." U.S. Board of Legfal Examiners, Report
to the President. 1941-1944, p. 34 (1945)..
Numerical grades were not assigned upon the
examination as a whole, but only -upon the
written test. The applicants who were recom-
mended for inclusion upon the register were,
however, given ratings of "Outstanding,"
"Excellent,"' "Good," and "Fair" on the basis
of recommendations from the various examining
boards. These descriptive ratings were shown
upon the register list. The list also showed
the length of professional experience of each
Id. at 36. 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 of Legal Examiners in the
Civil Service Comniission, before a subcommittee of the Senate
Committee on Civil Service, 78th Cong., 1st Sess. at 57-59 (1943).
/But at the same time the register directed the attention of
appointing officers to their duty to prefer preference eligibles
in making appointments. Id. at 47-48. However, there seems to
have been no guidance as to how appointing officers were to fulfill
this duty. Thus, veterans' preference points were added to the
written examination score. This was, however, only a third of the
total examining process. Moreover, the preference points were
used only in the determination as, to which applicants would be
placed on the register of eligibles. Consequently, the points
clearly benefited only those preference eligibles who received
marginal examination scares and needed the points to qualify for
listing on the register. Preference points were not used in the
most important aspect of the employment process -- the actual
appointment. Appointing agencies were merely instructed to "prefer"
preference eligibles over other applicants. This preference at
the appointing stage could only have been implemented by con-
sidering preference eligible status as a positive factor in the
- 7 -
The Legal Examining Board established by Executive
Order No. 8743 was destined to operate for but a short time.
In 1942 the Senate proposed the following amendment to the )
Independent Offices Appropriation Act of 1943.
[N]o part of any appropriation in this act
shall be available for the salaries and
expenses of the Board of Legal Examiners
created in the Civil Service Commission by
Executive Order No. 8743 of April 23, 1941.
88 Cong. Rec. 3822. However, this language was deleted as part
of a House-Senate compromise. In lieu of this amendment, the
appropriation available for the Board of Legal Examiners was
limited to $80,000 "with the understanding that such authorization
[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 of substantive law author-
izing a Board of Legal Examiners." House Conference Report No.
2259, 77th Cong., 2d Sess. (1942); and statement of House Managers m:-
88 Cong. Rec. 5441.
As the above quoted language indicates this restriction
was sought by Congressmen who believed that the Board should
have been created by legislation rather than by Executive
Order. Such legislation later passed the House (89 Cong. Rec.
3565) however, it subsequently died in the Senate Civil Service
Committee. See 90 Cong. Rec. 2659-60.
Whether the Legal Examining Board created by Executive
Order 8743 should be continued was debated in the legislative
history of the Independent Offices Appropriation Act of 1944.
It is there made clear that the intent of the restriction was
to prohibit "any civil service examination of lawyers." 90 Cong.
Rec. 2659 (1944). See also 90 Cong. Rec. 2660-61. This prohibition
was based largely on the view that the Commission has no business
in determining the "relative qualifications" of attorneys. 90 Cong.
fIec. 2661. The premise underlying this view was that the Commission
was not competent to pass on the qualification of lawyers.
Attachment to FPM Ltr. 302-5 (9)
90 Cong. Rec. 2661 (1944). 61 The restriction thus became law.
It reads as follows:
[N]o part of any appropriation in this Act shall
be available for the salaries and expenses of the
Board of Legal Examiners created in the Civil
Service Commission by Executive Order Numbered
8743 of April 23, 1941.
57 Stat. 173 (June 26, 1943). 71
A virtually identical restriction has been included in
each subsequent Commission appropriation since 1944. This
appropriation governing OPM's present activities, that is for
fiscal year ending September 30, 1979, reads as follows:
No part of the appropriation herein made to the
Civil Service Commission shall be available for
the salaries and expenses of the Legal Examining
Unit 8/ of the Commission established pursuant
to Executive Order 9358 of July 1, 1943 [8 Fed.
Reg. 9175], or any successor unit of like purpose.
Public Law 95-459,95th Cong., 2d Sess. (1978); 92 Stat. 1007.
6/ Although it was suggested that a legal examining board for
Executive Branch attorney positions be established in the Justice
Department (90 Cong. Rec. 2661 (1944)) this has never been done.
7/ This restriction placed attorney positions in a peculiar situ-
ation. They were, pursuant to Executive Order No. 8743, in the
competitive service. However, because of the restriction the
Commission could not conduct attorney examinations. The restriction
was placed in each subsequent Commission appropriation and finally
in 1947 President Truman, by Executive Order 9830, placed all
attorney positions in the excepted service.
8/ The reference to the "Legal Examining Unit of the Commission"
rather than the Board of Legal Examiners was occasioned by Execu-
tive Order No. 9358, which vested the power of the Board in the
Commission. Some members of Congress had questioned whether the
Board should be continued absent specific legislation. Thus,
(Footnote 8/ continued on page 10)
reason may not be required by OPEM.
8/ continued from page 9.
Executive Order No. 9358 transferred the Board's authority to the
Commission pendingg action by the Congress with respect to the
continuance of the Board." The 1943 appropriation restriction
and subsequent restrictions, of course, barred further action by
9/ It might be argued that the Commission would not be imposing
selection procedures if it only requires that agencies establish
their own procedures. However, if the Commission purports to
have the power of approval or rejection of such procedures this
approval power would be tantamount to Commission imposition of
selection procedures for attorneys.
- 10 -
Attachment to FPM Ltr. 302-5 (11)
The debaters of the 1944 appropriations restriction did
not fail to discern its effect on veterans' preference. Senator
Burton, for example, stated that the termination of civil service
examinations for attorneys would "do away with veterans' prefer-
ence" with respect to those positions. 90 Cong. Rec. 2660-61
(1944). Although we agree with Senator Burton insofar as the
ban on Commission examination of attorneys denies the Commission
the ability to impose a numerical rating system on attorneys, we
disagree with him in that we believe implementation of the
Veterans' Preference Act is possible without such a system.
The Department's Present Attorney Hiring Procedures
This Department believes that it is obliged to apply the
Veterans' Preference Act in some meaningful fashion with respect
to attorney hiring. To that end, on all Justice Department
employment applications is the question whether the applicant
is claiming veteran's preference. The fact that a person is a
preference eligible is weighed as a positive factor in the employ-
ment decision in the Department's regular attorney hiring program.
10/ We have been informed that this factor often accounts for the
selection of the veteran over other attorney applicants, and that
this is especially so when the veteran's other qualifications place
him in close competition with other applicants. In such cases
the veteran is preferred over other applicants with substantially
This procedure is consistent with application of the
Veterans' Preference Act as regards attorney hiring since 1941.
As stated above,Executive Order 8743 by prohibiting an attorney
rating system resulted in a situation in which veterans' pre-
ference could be implemented only by considering it positively
in the employment decision. Congress in response to the Execu-
tive Order, -rather than requiring a rating system, further
10/ The Department is experimenting with a numerical rating
system in its Honor Program which is geared toward the hiring
of attorneys directly out of law school and accounts for approx-
imately 15% of the Department's attorney recruitment. In this
experimental program veterans do receive additional rating points.
In this connection it should be noted that while OPM is barred by
its appropriation legislation from implementing attorney examination
systems, this bar does not extend to other agencies, not similarly
restricted, that might wish to implement or experiment with rating
or other examining systems in their own attorney hiring procedures.
- 11 -
John N. Harmon
Assistant Attorney General
Office of Legal Counsel
- 12 -
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