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mission. Aset. Secy. Int, May 16, 1921, an employee, even though he may be Enoch Davies, 21 & B. Dec. 116.1 drawing compensation under the act

Exceptions to Ladefinite Leave Bule. - referred to. Asst. Secy. Int., December The indefinite leave rule does not apply 27, 1922. James L. Miller. C. S. 37.) where an employee was carried on the Effects of Beceipt of Compensation rolla in violation of instructions from the construed Generally.-4 person drawing head of his department, as shown by the compensation under the Federal emfollowing cases

ployees' compensation act may or may The applicant, a clerk in the Interior not have the status of employee. The Department and in the classified service fact of acquiring a compensation status resigned June 30, 1910. She was re- does not, per se, work a severance of his instated to date August 10, 1911, and relation to the Government as employee. indefinitely furloughed August 21, 1911. He retains his status of employee so long Since the last-mentioned date she has as his name is properly bome upon the performed no service. Held: She was payrolls of his department.

The not in the service on the date the act of receipt of compensation has no effect May 22, 1920, became effective, as upon the operation of the six-months' retention of her name on the rolls was leave of absence provision of section 3 of contrary to specific orders of the depart- the retirement act.

If an emment. (Asst. Secy. Int., October 30, ployee in receipt of compensation has not 1920, Maria Cecilia Kerr, 21 P. & R. Dec. been separated from his position by 43.)

resignation or discharge and has thus Applicant served in the Geological retained his relation as employee until Survey from July 1, 1881, to April 30, he has reached the specified age for 1900, and his name was placed on the per retirement, the provision for automatic diem roll May 1, 1900, but he has not separation from the service contained in performed any service since the last section 6 of the act of May 22, 1920, mentioned date. His name was carried operates to effect his separation upon on the roll, contrary to the specific direc- reaching retirement age in the absence tiong oi the department, through in- of the certification for continuance advertence. Held: He was not in the provided in said section. (Asst. Secy. classified civil service when the retire. Int. to Com. of Pensions, January 27, ment act became effective. (Asst. Secy. 1923.) Int., January 27, 1921, John K. Hillers, 21 Status of Substitute Postal Employees.P. & R. Dec. 88.)

Substitute letter carriers and substitute

clerks in the post offices, and substitute STATUS OP INJURED EMPLOYEE UNDER ACT OF SEPTEMBER 7, 1916.

clerks in the Railway Mail Service, are

employees in the classified civil service Injured Employees of Navy Yard on of the United States, irrespective of the Leaves of Absence.--Employees of navy length of time they have been carried on yards, gun factorier, naval stations, and the substitute roll without performing arsenals should be regarded as earning service. If it should develop that there leave of absence under the act of August is an abuse of the law under which it is 29, 1916, 39 Stat. 617, for the period of possible to continue employees indefidisability resulting from their employ- nitely as substitutes, the remedy would ment, during which they are paid com- lie either in change of administrative pensation on account thereof under the practice or in legislative action. (C.S.C., employees' compensation act of Sep- January 14, 1921, Robert V. L. Cameron, tember 7, 1916, 39 Stat. 742, provided R-4424.) such employees recover from disability and again perform services; that is, time


AND GAUGERS. absent on account of disability may be counted in computing continuous service Storekeeper-gaugers, Etc., Civil Service for the purpose of granting leave of Status Not Affected by Intermittent Emabsence under said act of August 29, 1916, ployment.-Gaugers, storekeepers, and but such employees who are in receipt storekeeper-gaugers in the Internal Reveof compensation on account of disability nue Service were required to furnish may not be paid during the same period bonds to the collectors of internal revefor leave that may have accrued under nue, and their services were not continusaid act of August 29, 1916. (26 Comp. ous, as they were subject to assignment to Dec. 763.)

duty at bonded warehouses within the inReceipt of Compensation Does Not ternal revenue district in which they were Preserve Employee Status.—An employee appointed. They were required at all who is in receipt of compensation under the times to be subject to the call of collectors act of September 7, 1916, may be dropped for assignment to duty. The periods of from the rolls as a result of resignation or their assignment usually rested with discharge, and in such case he ceases to be the owners of warehouses and depended




upon the amount of spirits to be gauged

STATUS IN “EXCEPTED POSITIONS." and released from bond.

* The commission is of the opinion that gaugers,

Transfer or Promotion to an Excepted

Position Does Not Change Classified storekeepers, and storekeeper-gaugers who were required to be in readiness to answer

Status.--Applicant was appointed an

underclerk in the Interstate Commerce the call of collectors should be considered as having a competitive classified status

Commission September 14, 1908, as a result within the meaning of the retirement act,

of competitive civil service examination. but that in the case of any storekeeper

He served in such capacity until Janugauger who has not been assigned to duty confidential clerk to one of the commis

ary 16, 1913, when he was appointed a for a period of more than one year information should be obtained from the collector sioners, an excepted position, serving as under whom he was serving as to whether

such until November 16, 1919, when he the employee was held to he subject to

was appointed an attorney in said comhis call. Such an employee by renewing mission, also an excepted position, and his bond could remain on the rolls of the

which he now holds. The 21 per cent department indefinitely without being

provided by the retirement act has been

deducted from his salary since August 1, required to perform service. (C. S. C., November 12, 1920, George P. Lester,

1920, and he now claims a refund of $49.67, R-1186.)

being the amount of said deductions from

August 1, 1920, to December 24, 1920, the Storekeeper-gaugers, Rule for Estab

date of the President's order (see p. 55, lishing Service.—Under date of December

appendix), which he claims put him into 9, 1920, amongst other things it was deter

the classified civil service. Held: He mined in harmony with the recommendations made by the committee appointed

came into the service through competitive

examination, and he did not lose his by the Commissioner of Pensions to fix the status of storekeeper-gaugers, etc., in view

status in the classified civil service by of their intermittent employment that

transfer or promotion to an excepted posi

tion. (30 Op. Atty. Gen. 181.) The The committee has never entertained

President's order was made simply to any doubt that storekeepers, storekeeper

confirm the position which had been gaugers, and gaugers have a civil service

already assumed by the different branches status during the interim of assignments

of the Government in administering the to duty. * A person who pos

retirement act. It was not a sine qua non sesses a competitive classified status,'

so far as classified civil service status was who has been by the Civil Service Com

concerned in this case. The applicant mission certified to the Secretary of the

was in the classified civil service indeTreasury for appointment, and who has

pendent of said order and has no right to been accepted and appointed a store

a refund. (Asst. Secy. Int., June 3, 1921, keeper, storekeeper-gauger, or gauger may Ralph H. Kimball, 21 P. & R. Dec. 123.) be considered theoretically ‘in the classified civil service of the United States,'

Excepted Positions, Classified Status

not Acquired by Original the same sense that a substitute letter

The claimant (an acting assistant surgeon carrier is in the classified civil service,' in the Public Health Service) at the date but the tenure of his office and employment is intermittent and of uncertain annuity was filling an excepted position

of the execution of his application for duration.

The committee de

to which he had been appointed without cided therefore that in order that all the facts of employment may appear affirm

competitive examination; and such was atively in evidence in each individual

his status during his entire period of

service. Held: Executive order No. 3375 case, the Secretary of the Treasury should be required to furnish this bureau with

(December 24, 1920), does not provide

for the retirement, with annuity, of those a report showing the date of assignment

who have never had a status under the to duty and the period of actual em

civil competitive classified

service. ployment under such assignment each

(Asst. Secy. Int., January 24, 1921, John year from the time of appointment as a

G. Stanton, 21 P. & R. Dec. 85.) storekeeper, storekeeper-gauger, or gauger and the annual basic salary, pay, or com

The claimant (an inspector in the field pensation received from the United States

service of the Engineer Department at for the 10 years next preceding the date Large of the War Department), was occuof retirement. (Report of committee of pying at the date of his retirement on Bureau of Pensions dated December 9,

August 20, 1920, an excepted position

under Schedule A, subdivision I, para1920.)

graph 6, of the civil service rules, which XOTE.-See effect of transfer of storekeeper- excepts from the requirement of examinagaugers, etc., to excepted positions as given under the following heading, Status in excepted posi

tion any person receiving for his personal tions."

salary compensation aggregating not more 40251-23-2

* *

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than $300 per annum. Held: That an classified competitive service and are employee occupying an excepted position therefore subject to the retirement act. designated in Schedule A is not in the (C. S. C. Min., September 7, 1920.) classified civil service within the mean- Secret Service Employees.---Secret ing of the retirement act, unless appointed Service employees are subject to the reto such position in the manner in which tirement act. (C. S. C. Min., September competitive positions are filled. (Asst. 2, 1920.) Secy. Int., June 14, 1921, John R. C. Rent Commission of the District of Brown, R-3238; Atty. Gen., June 23, Columbia.—With the exception of the 1913, 30 Op. 181; Ex. order, December 24, secretary, all employees of the com1920.)

mission shall be appointed from lists of Storekeeper-Gaugers, Effect of Tempo- eligibles supplied by the Civil Service rary Assignment to Excepted Position.- Commission and in accordance with the The classified status of storekeeper- civil service law. (Act of October 22, gaugers is not affected by their temporary 1919, 41 Stat. 299.) appointment in the excepted position of United States Shipping Board.-With warehouse agent. (C. S. C. Min., Febru- the exception of the secretary, the ary 4, 1921.)

attorneys, and certain other positions of a Storekeeper-Gaugers, Classified Status technical or confidential character, the not Changed by Temporary Transfer.- employees of the United States Shipping In a decision rendered February 10, 1923, Board are in the classified civil service of the Assistant Secretary of the Interior the United States. (Act of September 7, quoted with approval the following ruling 1916, 39 Stat. 729.) of the Civil Service Commission dated United States Tariff Commission.-February 7, 1921:

With the exception of the secretary, a

clerk, to each commissioner, and certain The commission is of the opinion that the storekeeper-gaugers will retain their classified status special experts, all employees of the which will in nowise be affected by their temporary

United States Tariff Commission are in appointment as warehouse agents. The very the classified civil service of the United nature of the employment of storekeeper-gaugers requires them to secure other employment as they

States. (Act of September 8, 1916, 39 can not always depend upon the salary they earn Stat. 795.) as storekeeper-gaugers which depends upon the number and length of assignments.

Federal Trade Commission.— With the

exception of the secretary, a clerk to each It appears that a storekeeper-gauger is commissioner, the attorneys, and certain free to accept other employment with the special experts and examiners, all emGovernment or otherwise when his actual ployees of the Federal Trade Commission service is not needed in that position. are made a part of the classified civil He is paid only when actively employed, service.. (Act of September 26, 1914, 38 but so long as he is retained on the rolls

Stat. 718.) he has the legal status of an employee.

Bureau of the Budget.-All employees His temporary employment in some other of the Bureau of the Budget whose rate of capacity outside of the classified service compensation is not in excess of $5,000 does not destroy his status as an employee per annum are included in the classified in the classified civil service, and there- civil service of the United States. (Act fore the applicant, a storekeeper-gauger,

of June 10, 1921, 42 Stat. 20.) did not lose his. classified status by his

General Accounting Office.- The temporary employment in the unclassi- Comptroller General shall appoint, refied position of warehouse agent. (Asst. move and fix the compensation of such Secy. Int., February 10, 1923, Patrick attorneys and other employees in the M. Carr, C. S. 41).

general accounting office as may from time to time be provided for by law. All such appointments, except to positions carrying a salary at a rate of more

than $5,000 a year, shall be made in Status of Laborer Determined by

accordance with the civil-service laws Duties.-The designation “laborer” in

and regulations. (Sec. 311, Act June 10, itself contains no indication whether its 1921, 42 Stat. 20.) occupant is a classified or an unclassified employee; its status with relation to the CERTAIN EXCEPTIONS AND EXCLUSIONS. civil service rules is determined by the duties pertaining to it, and the position The classified service does not include of laborer whose duties are of the sort positions under the Library of Congress, usually pertaining to classified positions legislative, and judicial branches, consuis a classified position. (C. S. C., Febru- lar and diplomatic services, Pan American ary 18, 1922, Jacob H. Cole, R-8542.) Union, Emergency Fleet Corporation,

Porto Rico Customs Employees.- Federal Reserve Board, Federal Farm Porto Rico customs employees are in the Loan Board, War Finance Corporation, or



positions under the Government of the linquishment of Federal control, are to be regarded District of Columbia other than in the fire

as employees in the executive civil service of the

United States, and that the period of such service and police services and the Rent Commis- may be credited in computation of the length of sion. (C. S. C. report, vol. 38, p. 81.)

service in accordance with section 3, of the retireAlaskan Engineering Commission.-

ment act, subject to the conditions specified in

Section 10 of the act. The Alaskan Engineering Commission is excluded from the provisions of the act by

National Military Home.- No position Executive order of September 24, 1920.

in the National Military Home for Dis(See appendix, p. 55.)

abled Volunteer Soldiers is or ever has Deputy United States Marshals.—It is been in the classified civil service of the held that deputy United States marshals

United States. (Asst. Secy. Int., April are not in the classified service since the 23, 1921, Stewart J. McGowan, R-6320.) act of October 22, 1913, became effective,

Army Field Clerks.--Army field clerks regardless of whether they were appointed may be appointed by The Adjutant Genunder bond or through competitive ex

eral, without respect to the rules and reguamination. (Atty. Gen. Cir. Let., August lations of the Civil Service Commission, 10, 1920.)

and from the date of their appointment

they are solely within the control of the NOTE,-Prior to the act of October 22, 1913, office Rules and Articles of War and not subject deputy marshals would seem to have been in the classified civil service.

to the rules and regulations of the Civil Their status is fully shown by civil service Form 202 dated March, 1913.

Service Commission. (Atty. Gen., June

21, 1917, 31 Op. 133.) Deputy Collectors of Internal Revenue.-Deputy collectors of internal reve- WAR EMERGENCY APPOINTMENTS. nue have not been in the classified civil service of the United States since the pas- January 15, 1918.-An employee who was

Appointment under Executive Order of sage of the act of October 22, 1913. The

separated from the classified civil servoriginal classification of the Internal

ice in 1914, and was thereafter appointed Revenue Service was made in 1894 and

a clerk under Executive order of January applied only to clerks, storekeepers, 15, 1918, did not have a classified civil storekeeper-gaugers, and gaugers. In 1896

service status at the time the retirement deputy collectors, except chief deputies,

act became effective and is therefore not were classified. This, with the exception entitled to the benefits of the retirement of the highest positions, completed the

act. The Executive order of May 16, classification of that service. (C. S. C.

1921, provided, amongst other things, that report 38, p. xxix.) Deputy collectors of internal revenue

“Employees appointed under the orders

(war emergency) which are hereby remay be appointed under the act of October 22, 1913 (38 Stat: 208), without regard woked, serving in positions which are perto the civil service act and rules, and are,

manent under peace conditions, shall not therefore, not within the scope of the re

hereby be given a competitive classified tirement act, regardless of whether they head of the department or independent

status, but may, in the discretion of the are in fact so appointed. (Actg. Atty. establishment where now employed, conGen., July 19, 1920, 32 Op. 273.) National Prohibition Officers and Em

tinue in their present excepted status and ployees.--Under section 38 of the national

in their present positions or such allied prohibition act (41 Stat. 319), prohibition positions as the commission may apofficers and employees must, with certain

prove.”. (Asst. Secy. Int., April 1, 1922,

Alfred J. Bradford, 21 P. & R. Dec. exceptions, be appointed under the civil service act and rules, and hence only such

Appointment under Section 10 of Civil of them as must be so appointed are within

Service Rule II.-An employee who was the provisions of the retirement act.

separated from the classified civil service (Actg. Atty. Gen., July 19, 1920, 32 Op. section'10 of civil service Rule II with

in 1911, and was appointed in 1917 under 273.)

out competitive examination to a position United States Railroad Administration.--An employee in the United States

in the Engineer Department at Large of Railroad Administration is not in the

the War Department similar to that formclassified civil service of the United

erly occupied by him as a competitive States. (Asst. Secy. Int., March 16, 1921, civil service of the United States, and is

classified employee is not in the classified Charles J. Switzer, R-5328.)

not, therefore, subject to the retirement NOTE.-While it was held in the foregoing decision act. (Asst. Secy. Int., April 1, 1922, that an employee of the United States Railroad Administration was not in the classified civil service

Thomas S. Shelley, 21 P. & R. Dec. of the United States, the Solicitor for the Interior

Civil Service Status not Restored Department rendered an opinion under date of through War Emergency Appointment.May 10, 1923, to the effect that the employees comprising the administrative forve in the Railroad

In order to be entitled to the provisions Administration, both before and after the re- of the retirement act an employee must

not only have been accorded a classified section 10, Rule II, of the Civil Service civil service status, but he must have Commission, he does not thereby acquire retained it.

a classified civil service status and is not If he loses his classified civil service subject to the provisions of the retirement status and is reappointed, not by rein- act (Asst. Secy. Int., June 9, 1922, statement but by Executive order under Thomas S. Shelley, 21 P. & R. Dec.


PARAGRAPH 2. “The provisions of this Act shall include superintendents of United States national cemeteries, employees of the Superintendent of the United States Capitol Buildings and Grounds, the Library of Congress, and the Botanic Gardens, excepting persons appointed by the President and confirmed by the Senate, and may be extended by Executive order, upon recommendation of the Civil Service Commission, to include any employee or group of employees in the civil service of the United States not classified at the time of the passage of this Act. The President shall have power, in his discretion, to exclude from the operation of this Act any employee or group of employees in the classified civil service whose tenure of office or employment is intermittent or of uncertain duration." EMPLOYEES OF THE SUPERINTENDENT employees of the Superintendent of the GROUNDS, LIBRARY OP CONGRESS, AND Capitol Buildings and Grounds except BOTANIC GARDENS.

those (if any) appointed by the President

and confirmed by the Senate, and is thereConditions of Employment under Super- fore applicable to unskilled laborers in intendent of Capitol Buildings and the employ of said superintendent alGrounds Govern.-Employees of the though not applicable to such laborers in Superintendent of the Capitol Buildings the executive civil service. (Atty. Gen., and Grounds, "Salaries, office of super- September 29, 1920, 32 Op. 311.) intendent,” are subject to the retire- Ūnskilled Laborers, Library of Conment act, and those who are not em- gress and Botanic Gardens.—The opinployees of the superintendent are not ion of September 29, 1920, of the Attorney subject to the act, although they may be General, that unskilled laborers paid from under his direction. The appropriation an appropriation spent by the Superinfrom which the employees are paid and tendent of Capitol Buildings and Grounds the disbursing officer by whom paid are are subject to the retirement act, ab initio, irrelevant except in the matter of de- appears equally applicable to employees termining whether an employee is an of the Library of Congress and of the employee of the superintendent. Em- Botanic Gardens. (C. S. C. to Librarian ployees subject to appointment by com- of Congress, July 14, 1922.). mittees of Congress can not be held to be Executive Orders.-The President, in employees of the superintendent, not- the exercise of discretion conferred upon withstanding they may be under his him by the retirement act, has by various jurisdiction. (C. S. C.' to Secy. of the Executive orders extended the benefits Int., July 7, 1920.)

thereof to certain groups of employees, Unskilled Laborers, Superintendent and has also excluded certain other Capitol Buildings and Grounds.--The groups. These Executive orders will be retirement act expressly applies to all found in the appendix.

1 An act of Congress approved June 29, 1922, changed the title “Superintendent of the Capitol Buildings and Grounds” to “Architect of the Capitol.”

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