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for the judicial district of Rhode Island.” Under Plan No. 4 the function of appointing a marshal will be exercised by the Attorney General instead of the President, the difference being that the appointment will be “under the classified civil service.” Appointment under section 2 of the plan will presumably continue to be for "each judicial district.” If this practice is continued, a United States marshal appointed for the judicial district of Rhode Island would require a new appointment by the Attorney General to serve as the United States marshal for the judicial district in any other locality.
Accordingly, the answer to the first question respecting marshals should be in the affirmative. The answer to the second question with respect to transfer should be in the negative. It should be understood, however, that the inability to transfer a marshal from one district to another would not prevent a marshal from becoming the marshal in another district provided the Attorney General gave him another appointment and provided he met the residence requirement.
If a system should be followed, however, of appointing marshals to the office of United States marshal without limitation as to judicial district, then it is entirely possible that a marshall may be transferred from one judicial district to another judicial district without the necessity of a new appointment.”
(NOTE.—Upon receipt of the foregoing memorandum from the Department of Justice, the entire legal problem involved was resubmitted to the American Law Section for further analysis and comments, which are as follows:)
THE LIBRARY OF CONGRESS,
AMERICAN LAW SECTION,
Washington 25, D. C., June 5, 1952. To: The Senate Committee on Government Operations. Subject: Reorganization Plans Nos. 2, 3, and 4 of 1952.
By letter of June 2, 1952 and pursuant to our earlier telephone conversation you have transmitted to this section a copy of the memorandum transmitted to your committee by a letter from F. J. Lawton, Director of the Bureau of the Budget, and a letter from Joseph C. Duggan, Assistant Attorney General, Executive Adjudications Division. In addition, you enclosed Staff Memoranda No. 82–2–28 and 82–2–29 relating to these plans.
Both the letter from the Assistant Attorney General and the memorandum assert that the Acting Attorney General has certified the plans to be in accordance with the provisions of the Reorganization Act of 1949 (63 Stat. 203; U. S. C. (1946 ed., Supp. IV) 5:133z et seq.) and that he has approved them as to form and legality. Further, in the message transmitting each plan, the President states that he finds and declares each reorganization included in those plans to be necessary to accomplish one or more purposes set forth in section 2 (a) of the act. These assertions do not, however, necessarily establish conclusively the proposition that the plans do accord with the act and are legal. That is for Congress to decide.
In the memorandum it is stated that, although limited in scope, the three plans are plainly reorganization plans within the meaning of the act. But "reorganization” as used in the act means any transfer, consolidation, coordination, authorization, or abolishment, referred to in section 3. See section 8. Further, reorganization is subject to the requirements of section 4 and the limitations of section 5. One of the limitations in section 5 prohibits the increasing of a term of any office beyond that provided by law.
It is stated that there is no substantial difference between the action taken in Reorganization Plan No. 1 of 1952 and the actions taken in Plans Nos. 2, 3, and 4. Cursory inspection of the plans will refute that statement. Plan No. 1 provided for the outright abolishment, not later than December 1, 1952, of the offices of assistant commissioner, special deputy commissioner, deputy commissioner, assistant general counsel for the Bureau of Internal Revenue, collector, and deputy collector, as provided in the specified sections of the Internal Revenue Code. A definite provision was made for winding up the affairs of these offices. Further, in the place of these offices there were created three
2 A “transfer” to Hawaii would, of course, be limited hy the 3-year preappointment residence requirement.
offices of Assistant Commissioner of Internal Revenue, not to exceed 25 offices of district commissioner of internal revenue, and not to exceed 70 auxiliary offices. An additional office of Assistant General Counsel was created. Appointment to the new offices by the Secretary of the Treasury under the provisions of the Civil Service and Classification Act was provided.
The effect of Reorganization Plan No, 2 is stated by the President in the first sentence of the second paragraph of his message, as follows: "This reorganization plan provides for the gradual elimination of Presidential appointment and Senate confirmation of postmasters at post offices of the first, second, and third class and the institution of appointment by the Postmaster General under the Classified Civil Service.” The complete transition to the new method of appointment, he states, is expected to require a period of several years. That is all that Reorganization Plan No, 2 does. Stripped of the formal pronouncements and excess verbiage, the plan merely removes the advice and consent requirement and the 4-year term of office and it substitutes a civil-service appointment with its attendant indefinite term. This is merely a change in status, the practical effect of which is to increase the term of the office now forbidden in section 5 (a) (5). More than the catch-all transfer in section 3 of the plan. should be required to make this “reorganization" within the spirit and the terms of the act.
While section 3 of Plan No. 3 is more detailed and specific with reference to the abolition and transfer of the functions, we believe the objections noted with respect to Plan No. 2 can be applied. Referring in this instance also to the transmittal of the President, we find that he states, in paragraph 2, that the plan provides for the abolition of all offices of collector of customs, comptroller of customs, supervisor of customs, and appraiser of merchandise, to which ap-: pointments are now required to be made by the President by and with the advice and consent of the Senate. The abolition of these offices would occur gradually for provision is made whereby the incumbents may serve out their present terms of office.
Reorganization Plan No. 4 merely establishes a change of status for United States marshals, reserving to the incumbents the right to serve out their present terms of office.
With respect to section 5 (a) (5) of the Reorganization Act of 1949, supra, the memorandum transmitted by the Assistant Attorneys General says it cannot reasonably be construed to have the effect of “ 'increasing the term of office in contravention of section 5 (a) (5)." Why does he say “in contravention"? : Either the plan does increase the term or it does not increase the term. If it increases the term, it contravenes the plain wording of the law. If the term is for 4 years, for example, that does not mean the incumbent has an unqualified right to remain in the office for that entire period. He might be removed for cause in less time. See Myers v. U. S. ((1926) 272 U. S. 52, 164). See also Humphrey's Executor ((1935) 295 U. S. 602). Civil service status assures an indefinie continuation in the office which may extend for the life of a particular individual or until retirement after prolonged years of service without the necessity of a reappointment every 4 years. Removal for cause would apply here also. How can it be argued that this does not increase the term of office? Further, your staff memoranda enumerate the official disavowals of offices in the executive branch of claims of power to accomplish this type of change other than by specific legislation. We believe you have covered the point adequately.
We do not believe it necessary to discuss the residence requirements because we feel they are immaterial in view of the failure of the plans to meet the plain requirements of the law. We would suggest, however, that any plan contemplating the retention of these requirements should specifically make that reservation. It should be unnecessary to rely on outside assurances which would not be published in the Statutes at Large as required by section 11 of the act.
Congress was requested to grant reorganization powers comprehensive in scope, and to rely on the authority to reject any unwise plan by a simple majority vote. See Senate Report No. 232, and House Report No. 23, Eighty-first Congress. This was the "appropriate safeguard” to be used against undesirable changes and changes which, in fact, require positive legislation.
FRANK B. HORNE. Enclosures.
The CHAIRMAN. Dr. Flemming, will you come forward, please, sir?
I am sorry, Doctor, that we do not have the full attendance of the committee this morning, but I am sure you can make allowances for
those few who are absent. The pressure of our legislative duties now in this effort to get through and recess in time to elect a President keeps us well occupied, and we have difficulty spreading ourselves around to attend all committee meetings and look after other duties. So we have to operate at times without a full committee present.
We are very glad to have you here, Dr. Flemming, and those who are not present this morning, I am sure, will take advantage of the opportunity to read your remarks, because your views are important to us in our deliberations. Since you were a member of the Hoover Commission and also a member of the Civil Service Commission, we regard your opinions and your counsel as being very helpful to us.
Doctor, you may proceed with your prepared statement, or extemporaneously, as you prefer.
STATEMENT OF DR. ARTHUR S. FLEMMING, REPRESENTING THE
CITIZENS COMMITTEE FOR THE HOOVER REPORT
REORGANIZATION PLANS Nos. 2, 3, AND 4 OF 1952 Dr. FLEMMING. Thank you very much, Mr. Chairman. I certainly appreciate the opportunity of appearing before the committee and testifying in behalf of the reorganization proposals 2, 3, and 4. I will just make a few brief opening remarks, Mr. Chairman, and then if you or any members of the committee have any questions, I will be delighted to respond to them.
One of the principal concerns of the Hoover Commission was to make a series of recommendations which, if put into effect, would help to provide this Nation with an outstanding career civil service, the members of which have been appointed on the basis of merit. If such an objective is to be achieved, it seems to me that we must reach the point where the citizens of this Nation have confidence in the fact that merit considerations do govern and control the appointment of persons to the career civil service.
The present method for selecting postmasters does more than any other single factor, it seems to me, to undermine the confidence of the citizens of the Nation in the method of selecting persons for the career civil service. And that is why I personally believe that the recommendations of the Hoover Commission for changing the method of appointing postmasters is one of the most important recommendations that the Commission made, looking at it from the point of view of providing the executive branch of the Government with a sound system of personnel administration.
Under the 1938 act, the Civil Service Commission participates actively in the selection of postmasters of the first, second, and third class. I think the members of this committee are fully acquainted with the extent to which the Civil Service Commission participates in the selection of postmasters for the first, second, and third class. We know that examinations are announced. We know that those filing for post offices of the first class are given an unassembled examination. We know that for postmasters of the second and third class as assembled examination is held, and then in addition to that an inquiry is made relative to their character and general qualifications for the job. We also know that after the examinations have been held the Civil Service Commission certifies an eligible list to the Post Office Department.
Personally, drawing on my own experiences as a member of the Civil Service Commission, I feel that within the limits of its resources the Commission does a good examining job in this area.
I know when I first became a member of the Commission, in 1939, I was particularly impressed with the thoroughness of the investiga· tions which were conducted for postmasterships and offices of the first
class. And as I read the reports of those investigations, it seemed to me I was able to develop a pretty clear idea of the qualifications of the various persons who had filed for the examination.
All of us know, however, that once an eligible list of three persons has been submitted to the Postmaster General, political considerations immediately enter into the selection process. We are all acquainted with the so-called advisory system which the Post Office Department utilizes at this particular point, and we know that that advisory system consists of obtaining political recommendations relative to the persons who are on the eligible list submitted by the Civil Service Commission.
It seems to me that as long as the postmasters are appointed by the President and confirmed by the Senate, this political advisory system is bound to continue. It would be utterly unrealistic to expect anything else to happen. No President is going to submit names to the Senate of the United States for confirmation for a particular job knowing in advance that fair percentage of them are going to be rejected by the Senate.
Now, as long as this system does continue, representatives of the party out of power will not have any chance of being appointed to postmaster jobs. And as long as such a situation prevails, the American people are not going to have respect for or confidence in the merit system for the selection of civil servants.
Senator DWORSHAK. Doctor, I am sympathetic with your views, but you are certainly not contending, are you, that if you place the entire responsibility for the selection of postmasters in the hands of one man, the Postmaster General, thereby you with one stroke eliminate all partisanship and politics in the selection of those officials? Is that right? Do you take that position?
Dr. FLEMMING. Senator, first of all, of course, under this plan the entire responsibility for the selection would not rest with the Postmaster General. It would rest with the Postmaster General acting under the Civil Service rules promulgated by the President and the regulations of the Civil Service Commission.
Senator DWORSHAK. Is not civil service in the picture now?
Senator DWORSHAK. Yes. Do you mean to say that the Postmaster General could not be political, disregarding recommendations and requesting an entire list of 10 or 12 to be certified by the Civil Service Commission?
Dr. FLEMMING. No, Senator, I do not contend that the Postmaster General could not be political in the handling of appointments under this particular plan, but I do contend, as I had planned to do in just a few minutes, that it is possible for the President of the United States to promulgate a civil service rule which would minimize that possibility to a considerable extent.
Senator DWORSHAK. Are you talking about a President, an incumbent President, or a future President of the United States, when you make that statement ?
Dr. FLEMMING. I am talking about what the President of the United States, whoever he may be, could do under this plan if it were put into effect.
Senator DWORSHAK. How long have you been in Washington, Doctor? I know you have a brilliant record here, and I am one of your admirers. I think you have done a splendid job. But I would like to have the record show how long you have rendered service in Washington.
Dr. FLEMMING. Senator, I became a member of the United States Civil Service Commission in 1939 and served until 1948. During that period of time I also served as a member of the War Manpower Commission and also served as a member of the Hoover Commission. I am now serving as Assistant to the Director of the Office of Defense Mobilization in charge of manpower aspects of defense mobilization. And, Senator, if I could be permitted to just finish the thought that I had started on, I think that I will
Senator DWORSHAK. You go right ahead, and as long as you want.
Dr. FLEMMING. It is not a long statement, but I think it goes right to the point you make.
The CHAIRMAN. The Chair was endeavoring to let you finish, but Senator Dworshak has to leave.
Dr. FLEMMING. I appreciate your asking the question, Senator Dworshak, because as a result of my service with the Civil Service Commission, I feel it is a very important question and a very practical question.
Senator DWORSHAK. Thank you.
Dr. FLEMMING. I was just about to say that if this plan is put into effect, there is no question in my mind but that it must be followed up by the issuance of a civil-service rule by the President, prohibiting the Post Office Department from continuing to follow the present practice of soliciting advice from political advisers in connection with the appointment of postmasters or, Mr. Chairman and Senator Dworshak, in connection with the appointment of rural carriers. May I be perfectly frank and realistic and say that I know that political considerations enter into the appointment of rural carriers, to the same extent almost that they enter into the appointment of postmasters. And rural carriers do not need to be appointed by the President and confirmed by the Senate. And there isn't any question in my mind but that unless there is a civil-service rule issued by a President of the United States prohibiting the Post Office Department from continuing to follow the practice of consulting advisers on either rural carriers or postmasters, this plan will not achieve the kind of an objective that I have been talking about.
And could I just follow that by saying that, after all, there are career civil-service jobs throughout this Government of ours that are filled in accordance not only with the letter but the spirit of the civilservice system and without being referred to political advisers before vacancies are filled. And what is true of other departments and agencies of the Government, it seems to me, can be true, could be true, of the Post Office Department; and if it were true of the Post Office Department, this country would gain thereby.
ment of pocte from politichuing to follout, prohibitin