                                                               August 14, 1978


78-45     MEMORANDUM OPINION FOR THE
          ASSOCIATE ATTORNEY GENERAL

          Veterans Preference Act (5 U .S.C . §§ 2108, 3309-
          3320)— Application to Attorney Positions


   In 1977 the Civil Service Commission undertook an evaluation of the
employment procedures of the Department of Justice. It concluded that those
procedures concerning Schedule A and B excepted-service position (see the
Commission’s regulations, 5 CFR § 213.3101 et seq.) did not satisfy the
requirements of the Veterans Preference Act of 1944, as amended, 5 U.S.C.
§§ 2108, 3309-3320. The Commission’s Evaluation Manager informed the
Department’s Director of Personnel that the Department is required to:
      . . . revise current internal procedures for processing Schedule A and
      B applications to include numerical ratings for best qualified [appli­
     cants] and crediting veterans preference in order to fully comply with
      the requirements of [the Veterans Preference Act].
After some ambivalence by Commission officials whether to insist on this
numerical rating system, we understand that they now do insist on its
implementation.
   A number of other agencies have resisted the rating system, asserting that its
adoption would effectively negate affirmative action efforts to hire women and
minorities. We express no opinion as to how such a system would affect
affirmative action efforts. The issue we do address is whether the Commission
may require that attorneys be hired pursuant to such a system. For the reasons
that follow we believe that the Commission does not have such authority.
   Section 3309, title 5, U.S. Code, the key provision concerning veterans’
preference, provides that:
       A preference eligible who receives a passing grade in an examination
       for entrance into the competitive service is entitled to additional
      points above his earned rating, as follows—
       (1) a preference eligible under section 2108(3)(C)-(G) of this title— 10
       points; and
       (2) a preference eligible under section 2108(3)(A) of this title— 5
      points.
                                       179
   Section 2108, title 5, defines a “ preference eligible” as an honorably
discharged veteran who served in the Armed Forces under such conditions as
are set forth in that section. The 10-point preference provided by § 3309(1) is
directed to certain disabled veterans, and in some cases to their relatives or
survivors. The 5-point preference is directed to certain nondisabled veterans.
   The problem arises because under 5 U.S.C. § 3320 preference eligibles must
be selected for appointment in the excepted service in the same manner as are
preference eligibles in the competitive service. Literal compliance with this
provision is impossible because positions in the excepted service are not filled
pursuant to civil service examination. Thus, in the excepted service there are no
examination scores to which preference points may be added.
   In most instances the decision to examine for positions rests with the
Commission. Section 3302, title 5, authorizes the President to except positions
from the competitive service and Executive Order No. 10577, 3 CFR 218
(1954-1958 Compilation) delegated this authority to the Commission. See 5
CFR § 6.1. Therefore, the Commission may require examinations for most
excepted-service positions simply by removing them from the excepted service.
And, if the Commission could require that these positions be filled on the basis
of examinations it appears that it could require a rating system, because the
proposed rating system is actually a form of examination. See 2 discussion pp.
4-5, infra.
   Attorney positions are unique, however, in that the Commission is prohibited
by statute from requiring that they be filled pursuant to examination. Thus,
Commission authority to require a rating system for attorneys cannot be said to
derive from its authority to require examinations. Congress in the Commis­
sion’s 1943 appropriation act, 57 Stat. 173, restricted the Commission’s
authority over attorney hiring. That restriction provided that:
     No 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.
   An identical restriction has, to this date, been included in each Commission
appropriation:1 Thus, the Commission is barred from doing those things which
previously fell under the authority of the Legal Examining Board. Subsection


  'See, for exam ple, Pub. L. 94-363, 90 Stat. 968-69, which reads in pertinent part as follows:
       No part o f the appropriation herein made to the Civil Service Com m ission shall be
       available for the salaries and expenses o f the Legal Exam ining Unit o f the Com m ission
       established pursuant to Executive O rder 9358 o f July 1, 1943, or any successor unit o f
       like purpose.
   T he reference to the ‘‘Legal E xam ining Unit o f the C om m ission” rather than the Board o f Legal
Exam iners w as occasioned by E xecutive O rder No. 9358, 3 CFR 256 (1943-1948 com pilation),
which vested the pow er o f the Board in the C om m ission. Som e M em bers o f Congress had
questioned w hether the Board should be continued absent specific legislation. Thus, Executive
O rder No. 9358 transferred the B oard's authority to the Com m ission ‘‘[p]ending action by the
Congress with respect to the continuance o f the B o ard .” The 1943 appropriation restriction and
subsequent restrictions, o f course, barred further action by the Board.

                                                 180
3(d) of Executive Order No. 8743, 3 CFR 927-(1938-1943 compilation), 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, appointment, promotion, and transfer of attorneys
     in the classified service.2
   Administering examinations was but one of the functions of the Board. It
was also charged with establishing attorney selection procedures. The Commis­
sion’s proposed rating system constitutes an attorney selection procedure
because attorneys would be selected on the basis of their ratings. Therefore, the
appropriation restriction precludes the Commission from requiring the rating
system it proposes for attorney applicants.3 Based on this, it may reasonably be
argued that the Commission, in seeking to impose attorney selection proce­
dures, is acting contrary to Congress’ intent.4
   The original debaters of the restriction did not fail to discern the implications
of the appropriation restriction as it affects veterans’ preference. Senator
Burton stated:
     . . . if we cut off all civil service examination, it seems to me that we
     then throw the whole matter open, do away with veterans’ prefer­
     ence, and create a position which is not sound. [90 Cong. Rec. 2660
     (1944)]




    2Section 1 o f that Executive order placed m ost attorney positions in the classified service.
    ■’T his view is not altogether free from doubt. Senator M cK ellar, the sponsor o f the restrictive
provision, indicated that “ [i]t m erely provides that no part o f the m oney herein appropriated shall
be used for the purpose o f conducting such [civil service] exam inations.” 90 Cong. Rec. 2661.
Accordingly, it can be fairly argued that only the exam ination of attorneys was proscribed by the
restriction. But com pare the broader language o f Senator M cKellar at 90 Cong. Rec. 2660, stating
that the Com m ission has no business in determ ining the “ relative qualifications” o f attorneys. See
also Senator M cK ellar’s assertion that the Com m ission has no business in saying “ who shall be the
lawyers o f this G o v ern m en t." Independent Offices Appropriation Bill fo r 1945: Hearing on H.R.
4070 before the Senate Subcommittee o f the Committee on Appropriation, 78th C o n g ., 2d sess.,
343-44 (1944).
    Therefore, the C om m ission’s proposed rating system may be viewed as an exam ination and thus
im proper for that reason. The rating system , like an exam ination, would purport to objectively
m easure the abilities of attorneys and seek to gauge the “ relative qualifications” o f attorneys. As
such it would be an “ exam in ation,” as Senator M cKellar used that term . Legal E xam ining Board
"ex am in atio n s” were not limited to written tests; that term was construed to include oral interviews
as well. To Create a Board o f Legal Examiners in the Civil Service Commission: Hearing on H.R.
1025 before the House Committee on the Civil Service, 78th C ong., 1st sess., 4 (1943) (Statem ent
o f Solicitor General Fahy, an ex-officio m em ber of the Board).
     4The Com m ission m ight argue that it is not im posing selection procedures, but that it is only
requiring that agencies establish their own procedures. H ow ever, the C om m ission’s purported
 power o f approval o r rejection o f such procedures is tantam ount to Com m ission im position of
selection procedures for attorneys.
     Congress, in considering the 1944 restriction, rejected any Com m ission role in determ ining the
 “ relative qualifications" o f law yers. 90 Cong. Rec. 2660 (rem arks o f Senator M cK ellar). The
rating system , how ever, would result in the Com m ission doing just that.

                                                  181
And, again at 90 Cong. Rec. 2661, Senator Burton cautioned that the
restriction:
      . . . would result in the return of lawyers to a patronage basis, making
      impossible the application to them of the veterans’ preference
      provisions already in the statutes.
The only response to Senator Burton’s cautionary statement was the suggestion
that a legal examining board for all attorney applicants be established in the
Department of Justice. Senator McKellar, 90 Cong. Rec. 2661 (1944). This,
however, has never been done.
   Thus, there is reason to doubt that the Commission may lawfully require an
attorney rating system. As we mentioned above, 5 U.S.C. § 3320 requires that
veterans’ preference apply in the excepted service in the same manner as in the
competitive service. However, attorney positions are unlike most others in the
excepted service in that the Commission cannot remove them from the excepted
service. Additionally, the restrictive appropriation provision casts doubt on the
Commission’s authority to require attomey-selection procedures.5
   While the Commission’s authority to enforce veterans’ preference in attorney
hiring may be dubious, the Department is bound to apply it in some fashion. In
our opinion, it need not be applied through a numerical rating system; such a
system for attorney hiring was considered and rejected as long ago as 1941.
Thus, it was not viewed as essential to implementation of veterans’ preference.
   President Franklin D. Roosevelt, by Executive Order No. 8044, 3 CFR 456
(1938-1943 compilation) appointed a committee to study and make recommen­
dations on civil service procedures. In February 1941 that committee submit­
ted its report entitled Report o f the President’s Committee on Civil Service
Improvement. H. Doc. 118, 77th Cong., 1st sess. (1941). The report stated two
major views on attorney selection procedures— Plan A and Plan B.
   Plan A recommended that attorneys be evaluated only to determine whether
they were qualified for Federal service. If so, they would not be given a rating,
but rather, all qualified applicants would be considered equally eligible for
employment.
   Plan B recommended, at least in the case of inexperienced attorneys, that
they be examined and rated competitively.
   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
      oganizations, may often indicate the need for flexibility and ad hoc
      adjustments, even at the cost of uniformity and symmetry. . . .
      . . . We therefore have considered and presented our recommenda­
      tions on the assumption that the attorney positions present a unique

   5A s further evidence that the C om m ission's authority to enforce the V eterans Preference Act in
attorney hiring is unclear, the C om m ission until recently was o f the view that it had no authority to
enforce that A ct in the excepted service at all. W e lim it our disagreem ent with Com m ission
enforcem ent authority to attorney selection.

                                                  182
     problem in the professional service, which must be solved individu­
     ally rather than by application of a general formula. [H. Doc. 118,
     supra, at p. 32-33]
   As well as recommending against a rating system for attorneys, Plan A
recommended against applying the competitive service procedure of certifying
three applicants to the appointing officer. 5 U.S.C. § 3318. It was stated by
those urging Plan A that:
     We feel that any mechanical ranking and certification would operate
     in an undesirably arbitrary manner, that the superior officer 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 definition are qualified to do legal work
     o f a high order. [Id., at 38] [Emphasis added.]
   President Roosevelt adopted Plan A in Executive Order No. 8743, 3 CFR
927 (1938-1943 compilation). That order 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 veterans’ preference . . .
      shall be appropriately designated thereon.
Thus, a rating system was not required. Preference eligibles, however, were
designated on the register. Therefore, under Executive Order No. 8743,
because no numerical ratings were used in the selection process, veterans’
preference was implemented only by considering it a positive factor in the
employment decision. At the present, veterans’ preference is positively
considered in Department employment decisions. If all other factors are equal,
or even close, the preference eligible will normally be selected over the
nonpreference eligible.
   The Department will soon adopt new procedures whereby applicants
interviewed through the Department’s Honor Graduate Program for attorneys
will be given scores based on nine employment factors. Five or ten veterans’
preference points, where applicable, will be added to these scores. Based on the
scores, applicants will then be evaluated as best-qualified, qualified, or
unqualified. All best qualified applicants will be eligible for Department
employment. However, the scores received in the Honor Program rating system
will not be considered in the final selection process.
   The Department will soon formalize its present policy and issue a directive
requiring that the final attorney selection process consider veterans’ preference
as a positive factor. Thus, in the Honor Program the veteran will twice benefit
from the application of preference.
   This procedure has been proposed in the Honor Program on an experimental
basis. We understand that if it proves to be an accurate indicator of desirable
attorney applicants, the procedure may be expanded to other attorney hiring
practices in the Department. Veterans’ preference will remain a positive factor

                                       183
in hiring attorneys with or, without the proposed point system. We feel that this
practice will give adequate effect to the Veterans Preference Act.
   We conclude that our practice reasonably gives effect to the Veterans
Preference Act. In responding to the Commission’s request that we establish a
numerical rating system, we question its authority to require such a system for
attorneys. It would be appropriate to explain to the Commission our procedure
of positively considering veterans’ preference and the new procedure to be used
in the Honor Program. If the Commission is satisfied with this, the question of
its enforcement authority may be mooted.

                                              John M . H arm on
                                          Assistant Attorney General
                                                     Office o f Legal Counsel




                                       184
