The 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.
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(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.
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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.
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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.
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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
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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.
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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.
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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.
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