regular procedure of the Civil Service Act and Rules, and that if the appointment officer chooses to do so, the person so appointed shall, by reason of such appointment, become eligible for subsequent transfer, promotion, or reinstatement to a position in the classified civil service. In so providing the President is merely preserving the rights of such person obtained through competitive examination. by declaring such person eligible for subsequent transfer. promotion, or reinstatement to a position in the classified civil service, and such declaration does not in any manner whatsoever affect or restrict the powers of the appointment officer in making appointments to or removals from such positions. 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. Accordingly, questions 2 and 3 (a) are answered in the affirmative, and question 5, in the negative. Question 3 (b), it is believed, may be construed as relating solely to original appointment from a civil service register of eligibles, because the status under the Retirement Act of May 22, 1920, as amended (5 U. S. C. 691-694, 693a), of a person who has entered a position in the executive civil service of the United States by transfer, promotion, reinstatement, or demotion, has already been determined in opinions of the Attorney General (34 Op. 193, 334, 515; 35 id. 413). On this basis the Commission's question is 34967-36—vol 37- -5 answered in the negative, since such appointment is not to a classified position, but to one excepted from classification by statute, and, therefore, does not place the employee in the classified civil service of the United States within the meaning of the Retirement Act, as amended, supra (32 Op. 273; 34 id. 193, 334, 515; 35 id. 413), but merely confers upon such employee eligibility for subsequent transfer, promotion, or reinstatement to a position in the classified civil service. Question 4 must be answered in the affirmative in view of the conclusion reached by Attorney General Sargent when considering a similar subject in his opinion of March 12, 1928 (35 Op. 413). On page 418 of that opinion, he said: 66 * it has been the practice of the Commission for perhaps forty years to issue such certificates or to take other curative action nunc pro tunc in meritorious cases when its attention has been drawn to the omission of some formality necessary to preserve the rights of an employee, and I have no reason to doubt its power to do so. from the probable correctness of its conclusion, the uniform practice followed for so many years may not, under the principle referred to above, be lightly disturbed." Aside In this respect I am in full accord with the opinion of my predecessor, for obviously Congress intended that in creating the Civil Service Commission it was thereby protecting the rights of civil service employees as well as the interests of the United States and the failure of an appointing officer to take the proper formal action should not be permitted to annul or obliterate the status to which an employee, perhaps without his knowledge, was entitled at any given time. Obviously, the curative action indicated is the issuance by the Commission of a certificate nunc pro tunc as soon as a matter of this sort is brought to its attention. Respectfully, To the PRESIDENT. WILLIAM D. MITCHELL. CIVIL SERVICE RETIREMENT ACT-CASE OF MR. ROSCOE F. WALTER The President has no authority to issue an Executive order conferring the benefits of the Civil Service Retirement Act upon Mr. Roscoe F. Walter, Senior Examiner in the United States Interstate Commerce Commission, since Mr. Walter's position is excepted from the requirements of examination under civil service rules, and the Civil Service Commission has recommended to the President against the issuance of such an order. DEPARTMENT OF JUSTICE, June 10, 1932. SIR: I have the honor to refer to a letter of January 23, 1932, from your Secretary, Mr. Lawrence Richey, with enclosures, requesting to be advised whether there would be any legal objection to the issuance of an Executive order placing Mr. Roscoe F. Walter, Senior Examiner in the United States Interstate Commerce Commission, in the classified civil service so as to enable him to enjoy the benefits of the Retirement Act of May 22, 1920, and amendments. It appears from Mr. Richey's letter and enclosures that Mr. Walter never has had a status in the competitive classified civil service; that his present position is excepted from the requirement of examination under the civil service rules, and that the Civil Service Commission has recommended to the President against the issuance of such an order. The Act of May 29, 1930, amending the Retirement Act of May 22, 1920, as amended, so far as material here, provides (c. 349, 46 Stat. 468, 470-471; 5 U. S. C. 693a): "SEC. 3. This Act shall apply to the following employees and groups of employees: (a) All employees in the classified civil service of the United States, including all persons who have been heretofore or may hereafter be given a competitive status in the classified civil service, with or without competitive examination, by legislative enactment, or under civil service rules promulgated by the President, or by Executive orders covering into the competitive classified service groups of employees with their positions or authorizing the appointment of individuals to positions within such service. * * * * " (g) NOTE. The publication of this opinion was delayed. "The provisions of this Act may be extended by Executive order, upon recommendation of the Civil Service Commission, to apply to any employee or group of employees in the civil service of the United States not included at the time of its passage. * **" Paragraph (a) first appeared in the Act of March 27, 1922 (c. 116, 42 Stat. 470), construing the expression in the Retirement Act of May 22, 1920, "classified civil service." Not only did Congress in that Act define the term "classified civil service," as used in the Retirement Act, but also provided in paragraph 2 thereof that "The expression 'classified civil service' as the same occurs in other Acts of Congress shall receive a like construction to that herein given." Paragraph (a) confers the benefits of the Retirement Act upon all employees, among others, who have been or may be appointed by Executive order to positions within the competitive classified civil service. However, assuming without deciding that the President would have authority to do so without covering into the competitive classified civil service all examiners of the Interstate Commerce Commission with their positions, the placing of Mr. Walter by Executive order in the competitive classified civil service would not be appointing him to a position in that service within the meaning of paragraph (a), for the reason that his present position is excepted (Schedule A, section 1, paragraph 4) from the requirement of examination under the civil service rules (Rule II, section 3). Paragraph (g), among other things, authorizes the President, upon the recommendation of the Civil Service Commission, to extend the benefits of the Retirement Act to any employee in the civil service of the United States not entitled to the benefits of that Act on May 29, 1930. In the case of Mr. Walter, however, the Civil Service Commission has recommended to the President against extending to him the benefits of the Retirement Act. It would appear, therefore, that the President is without authority to confer upon Mr. Walter the benefits of the Retirement Act. Respectfully, To the PRESIDENT. WILLIAM D. MITCHELL. AUTHORITY OF THE PRESIDENT TO GRANT SICK LEAVE TO ALL EMPLOYEES IN THE FEDERAL SERVICE The President is without authority to issue an Executive order granting sick leave of absence generally to all employees in the Federal service. DEPARTMENT OF JUSTICE, July 28, 1932. SIR: I have the honor to refer to a letter from your secretary, Mr. Lawrence Richey, dated July 1, 1932, enclosing a letter to you from Miss Gertrude M. McNally, SecretaryTreasurer, National Federation of Federal Employees, inviting attention to the fact that certain employees of the Federal Government, located mostly in the navy yards and arsenals, the Government Printing Office, and the Bureau of Engraving and Printing, do not receive sick leave of absence, and urging the issuance of an Executive order granting sick leave of absence generally to all employees in the Federal service; also Mr. Richey's letter of July 6, 1932, enclosing a similar communication to you from Mr. N. F. Alifas, President, District No. 44, International Association of Machinists. Mr. Richey requests to be advised whether you possess the authority to issue such an Executive order. By the Act of March 3, 1893, c. 211, 27 Stat. 715, as amended (U. S. C., Title 5, sec. 30), Congress provided that "the head of any Department may grant thirty days' annual leave with pay in any one year to each clerk or employee." This Act further provided that under certain circumstances the annual leave with pay might be extended for not to exceed thirty days in the event of the illness of a clerk or employee or of some member of his immediate family. This statute has uniformly been held to apply only to clerks and employees of the executive departments as opposed to employees of the so-called independent establishments or bureaus. 22 Op. 62; 21 Op. 338. Special statutory provisions for leave of absence exist with reference to the classes of employees referred to in Miss McNally's letter. By the Act of June 11, 1896, c. 420, 29 Stat. 453 (U. S. C., Title 44, sec. 45), employees of the Government Printing Office were allowed "leaves of absence with pay " not exceeding thirty days in any one fiscal year. By the Act of July 6, 1892, c. 154, 27 Stat. 87, as amended |