Whether the Peace Corps Director May Certify Peace Corps Response Volunteers for Noncompetitive Eligibility for Federal Employment Under Executive Order 11103

Whether the Peace Corps Director May Certify Peace Corps

Response Volunteers for Noncompetitive Eligibility for

Federal Employment Under Executive Order 11103

Under Executive Order 11103, which describes a “full term of service” as “approximately two years,”
the Director of the Peace Corps may not issue certificates of satisfactory service to volunteers in the
Peace Corps Response program (“PCRVs”) who serve between three and twelve months.
The Director may not issue certificates of satisfactory service to PCRVs under the exception in
Executive Order 11103 for those who do not complete a full term “due to circumstances beyond
their control.”

January 9, 2013

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

PEACE CORPS

In Executive Order 11103, the President authorized the Director of the Peace
Corps (“Director”) to issue certificates of satisfactory service to returning Peace
Corps volunteers. These certificates provide volunteers with one year of noncom-
petitive eligibility for a civil service appointment in the Executive Branch. See
Exec. Order No. 11103, 3 C.F.R. 173 (1963 Supp.) (“Order”); 5 U.S.C. § 3301
(2006) (“The President may . . . prescribe . . . regulations for the admission of
individuals into the civil service . . . .”); id. § 3302 (“The President may prescribe
rules governing the competitive service.”). The Executive Order provides that only
those volunteers “who have completed a full term of service (approximately two
years)” are eligible for these certificates, but also allows the Director to issue
certificates to volunteers who complete “a lesser period of satisfactory service if,
in the judgment of the Director . . . their service was of sufficient duration to
demonstrate their capability to complete satisfactorily a full term, and . . . their
failure to complete a full term was due to circumstances beyond their control.”
Order § 3.
You asked whether the Director may issue certificates of satisfactory service
not only to traditional Peace Corps volunteers, who serve terms of approximately
27 months, but also to volunteers in the Peace Corps Response program, a
program in which volunteers complete shorter terms, typically between three and
twelve months.1 Specifically, you asked whether Peace Corps Response Volun-
teers (“PCRVs”) complete the required “full term of service” under the Order by

1
See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from
Bill Rubin, General Counsel, Peace Corps (June 19, 2012) (“Peace Corps Letter”). We also received
the views of the Office of Personnel Management (“OPM”) regarding the issues addressed in this
opinion. See Memorandum for John E. Bies, Deputy Assistant Attorney General, Office of Legal
Counsel, from Elaine Kaplan, General Counsel, Office of Personnel Management (Oct. 16, 2012)
(“OPM Letter”).

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fulfilling a three-to-twelve-month service obligation, notwithstanding the paren-
thetical in the Order describing a “full term of service” as “approximately two
years.” Id. If not, you requested that we also consider whether the Director could
issue certificates to PCRVs based on the Order’s exception for those who do not
complete a full term “due to circumstances beyond their control.” Id. We conclude
that, under the terms of the Executive Order, the Director may not issue certifi-
cates to PCRVs under either the full term of service requirement or the circum-
stances beyond their control exception.

I.

The Peace Corps Response program began in 1996 as a short-term volunteer
program for those who had previously served as traditional Peace Corps volun-
teers. Peace Corps Letter at 2. The Peace Corps has since opened the program to
qualified individuals with no prior Peace Corps experience, but the other features
of the program have remained the same. Id. PCRVs complete assignments that are
more specialized than those given to traditional volunteers. Their assignments
“can be as short as three months and generally do not exceed 12 months.” Id. at 2.
Aside from the shorter length of service and specialized work assignments,
however, both the terms of PCRVs’ service and the benefits they receive are
comparable to those of traditional volunteers. The only benefit that traditional
volunteers currently receive that PCRVs do not is the certificate of satisfactory
service for noncompetitive eligibility issued by the Director under Executive
Order 11103.
Executive Order 11103 states that “the head of any agency in the Executive
Branch may appoint in the competitive service” (and, if the agency has “an
established merit system in the excepted service,” may appoint in the excepted
service) “any person who is certified by the Director of the Peace Corps as having
served satisfactorily as a Volunteer or Volunteer Leader under the Peace Corps
Act” and who passes whatever examination is prescribed. Order §§ 1, 2. For “a
period of one year after” certified volunteers complete their service (subject to
extension under certain conditions), id. § 4, they are eligible to attain employment
in the Executive Branch “outside of the competitive examining process,” OPM
Letter at 3. This certification provides recipient volunteers a “significant” ad-
vantage in the federal hiring process. Id.
Section 3 of the Order defines persons whom the Director may certify for a
noncompetitive appointment:

Certificates of satisfactory service for the purposes of this Order
shall be issued only to persons who have completed a full term of
service (approximately two years) under the Peace Corps Act: Pro-
vided, That such certificates may be issued to persons who have
completed a lesser period of satisfactory service if, in the judgment

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 Noncompetitive Eligibility for Federal Employment Under Executive Order 11103

of the Director of the Peace Corps, (1) their service was of sufficient
duration to demonstrate their capability to complete satisfactorily a
full term, and (2) their failure to complete a full term was due to cir-
cumstances beyond their control.

Order § 3.

II.

The first issue is whether PCRVs qualify for a certificate of satisfactory service
under the Order because they have completed “full term[s] of service under the
Peace Corps Act” by virtue of completing their three-to-twelve-month assign-
ments as PCRVs, even though PCRVs’ terms are considerably shorter than the
approximately 27-month terms served by traditional Peace Corps volunteers.2
Based on both the text and the context of Executive Order 11103, we conclude
that the Peace Corps Response program’s three-to-twelve-month term does not
qualify as a “full term of service” as the Order uses that phrase.
To begin with, the text of the Order indicates that the President expected that
volunteers receiving noncompetitive eligibility would have completed terms of
service more substantial than the three-to-twelve-month assignments PCRVs
typically receive. The parenthetical immediately following the full term of service
requirement states that a full term runs “approximately two years.” Order § 3. We
recognize, as you suggest, that this language could be read as either prescriptive
(requiring that a full term of service be approximately two years) or descriptive
(noting that the average term of service for a volunteer at the time of the Order
was approximately two years). See Peace Corps Letter at 2. But we do not think
characterizing the parenthetical as descriptive changes the analysis. Even if the
parenthetical simply describes President Kennedy’s understanding of the length of
a full term of service when he signed the Order, it nonetheless indicates that the
President intended to confer noncompetitive eligibility on those Peace Corps
volunteers who serve approximately two years (or who otherwise qualify through
the circumstances beyond their control exception). In light of this parenthetical, it
is unclear that the President would have extended noncompetitive eligibility to
PCRVs had that short-term program existed in 1963. We believe that a “full term

2
OPM concluded that PCRVs cannot receive certificates of satisfactory service based in part on its
view that PCRVs are not “volunteers” as the term is used in the Order. OPM Letter at 2. You
responded that the Peace Corps considers PCRVs “volunteers” under the Peace Corps Act and noted
that “the Executive Order . . . [does not] distinguish[] between categories of Volunteers.” E-mail for
John E. Bies, Office of Legal Counsel, from Jan Miller, Peace Corps, Re: Response to OPM opinion
(Nov. 26, 2012). Because our analysis does not turn on whether PCRVs are volunteers within the
meaning of the Order, we need not resolve this definitional issue and assume for purposes of this
opinion that PCRVs are “volunteers.”

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 Opinions of the Office of Legal Counsel in Volume 37

of service” under the Order is best read to mean approximately two years of
service.
The context of the issuance of the Order provides considerable support for this
interpretation. When President Kennedy signed the Order, he would have under-
stood a full term of service to run approximately two years. Before the Peace
Corps was established, a report prepared for the President described the proposed
volunteer program as having a “usual length of service . . . [of] at least one year,
preferably two, and perhaps in some cases three or more years.” Peace Corps:
Shriver Report and Recommendations 10 (Feb. 1961) (available at http://www.
jfklibrary.org (digital identifier JFKPOF-085-014), last visited Sept. 11, 2014). By
the time the Peace Corps issued its first annual report in July 1962, the idea that
volunteers would serve a two-year term had become reality. The report explains
that when Peace Corps was first established, “it was decided” that “[v]olunteers
would serve for two years, without salary or draft exemption.” See Peace Corps:
First Annual Report 8 (July 1962) (available at http://www.jfklibrary.org (digital
identifier JFKPOF-086-003), last visited Sept. 11, 2014). Thus, a two-year term
was standard by the time President Kennedy signed the Order in April 1963.
Background documentation about the Order itself also supports our conclusion
that the President contemplated that a full term of service under the Order would
be approximately two years. When the Director of the Bureau of the Budget3
transmitted the proposed Order to the Attorney General for review in March 1963,
he described the Order as “permit[ting] the Peace Corps to issue certificates of
satisfactory service only to persons who had completed a full term of 24 months of
service,” unless the exception for circumstances beyond the volunteer’s control
applied. Letter for Robert F. Kennedy, Attorney General, from Arthur B. Focke,
General Counsel, Bureau of the Budget at 2 (Mar. 12, 1963) (emphasis added).
This reflects an understanding within the Kennedy administration that noncompet-
itive eligibility depended on two years of service. We believe the Order is best
interpreted in a manner consistent with its text and these indications of President
Kennedy’s understanding of the Order at the time he signed it, particularly in light
of the President’s authority to revise this executive order at any time. See Memo-
randum for Kenneth A. Lazarus, Associate Counsel to the President, from Antonin
Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Applicability of
3 C.F.R. Part 100 to the President and Vice President (Dec. 19, 1974) (interpret-
ing an executive order in a manner consistent with public statements President
Johnson made at the time of the Order); cf. John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 139 (2008) (“[S]tare decisis in respect to statutory interpre-
tation has special force, for Congress remains free to alter what we have done.”)
(internal quotation marks and citation omitted).

3
The Bureau of the Budget was the predecessor agency of the Office of Management and Budget.
See Reorganization Plan No. 2 of 1970, 35 Fed. Reg. 7959, reprinted in 5 U.S.C. app. 640 (2006).

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 Noncompetitive Eligibility for Federal Employment Under Executive Order 11103

Finally, we note that this interpretation of the Order would make its service
commitment similar to that required in other Executive Branch programs that
confer noncompetitive eligibility (typically at least a year, if not more). See, e.g.,
5 C.F.R. § 315.607 (2012) (providing that Peace Corps personnel (not volunteers)
may be eligible for a noncompetitive appointment if they complete “no less than
36 months of continuous service”); 5 C.F.R. § 315.610 (2012) (providing that
certain National Guard technicians may be eligible if they have served “at least 3
years as a technician”); Exec. Order No. 11219, § 1(c), 3 C.F.R. 127, 127 (1965
Supp.) (providing that present or former career officers or employees of the
Foreign Service may be eligible upon completing “at least one year of continuous
service”); 5 C.F.R. § 315.606 (2012) (same); 5 C.F.R. § 315.609(b) (2012)
(providing that career employees of the Panama Canal Commission may be
eligible if they “served continuously for at least 1 year”); 5 C.F.R. § 315.608
(2012) (providing that certain family members of federal employees officially
assigned to an overseas area may be eligible after their sponsoring federal
employees complete “52 weeks of creditable overseas service” (except in extraor-
dinary circumstances)).
To be sure, the President has delegated to the Director broad authority to pre-
scribe the “terms and conditions of the service of volunteers,” see 22 U.S.C.
§ 2504(a) (2006); see also Exec. Order No. 12137, 3 C.F.R. 389 (1979 Comp.),
and nothing in the Peace Corps Act or the Order would prevent the Director from
changing the length of service for both traditional volunteers and PCRVs. Peace
Corps Letter at 1. We do not think, however, that the Director’s general authority
to change the length of volunteers’ service also includes the authority to modify a
presidential understanding, conveyed by the Order, of the length of service that is
necessary to earn noncompetitive eligibility.
For these reasons, we conclude that that the Order is best read to permit the
Director to confer noncompetitive eligibility only on those volunteers that
complete approximately two years of service or who satisfy the terms of the
circumstances beyond their control exception.

III.

You also asked us to consider whether the Director may certify PCRVs for
noncompetitive eligibility based on the exception for volunteers who complete “a
lesser period of satisfactory service,” but who, “in the judgment of the Director of
the Peace Corps,” (1) have provided “service . . . of sufficient duration to demon-
strate their capability to complete satisfactorily a full term,” and (2) have failed to
complete a full term “due to circumstances beyond their control.” Order § 3.
In our view, this exception should not be read as a general rule that PCRVs
who complete their entire assignments receive noncompetitive eligibility. The text
of the language authorizes the Director to make exceptions in “circumstances
beyond [the] control” of the volunteer, indicating that this authority is to be used

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on an individualized basis when unanticipated events require volunteers to
truncate service otherwise expected to last “full terms” of approximately two
years. That text does not fit the circumstances presented here. By agency design, a
PCRV’s service lasts between three and twelve months; and a PCRV’s service
does not terminate prematurely based on circumstances beyond his or her control.
Moreover, certifying the entire class of PCRVs for noncompetitive eligibility
under this exception would be inconsistent with agency practice. You have
informed us that the Peace Corps has long implemented this exception on a case-
by-case basis, for example, where a changed political climate makes a volunteer’s
assigned country unsafe, where a volunteer has been a victim of sexual assault, or
where some similarly grave, unforeseen circumstance arises. This consistent
practice comports with the best reading of this exception.4 For these reasons, we
conclude that the exception does not provide a basis for the Director to confer
noncompetitive eligibility on PCRVs.

VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel

4
Under the Peace Corps’ established practice, PCRVs also would not satisfy the exception’s first
requirement—that volunteers complete service of “sufficient duration to demonstrate their capability to
complete . . . a full term” as the Order uses that phrase (i.e., to be approximately two years). Order § 3.
Although nothing in the Order limits the Director's discretion to determine what constitutes service of
“sufficient duration,” you have informed us that the Peace Corps has long used one year of service—the
upper limit of a Peace Corps Response term—as a benchmark to qualify for the exception. We understand
that, until two years ago, the Peace Corps required volunteers to serve at least 12 months before they could
be considered for a certificate under the exception. You explained that Peace Corps will now consider
volunteers with less than a year of service in certain extraordinary circumstances, but that, as your
guidelines note, “normally at least twelve consecutive months, including training,” will be required to
qualify. See MS 285 Volunteer Description of Service and Certificate of Group Health Coverage § 5.3
(Aug. 26, 2011) (available at http://files.peacecorps.gov/manuals/manual/200_Volunteers/280-289_
Volunteer_Transfers_Completions_of_Service_Termination/MS_285/Volunteer_Description_of_Service_
and_Certificate_of_Group_Health_Coverage.pdf, last visited Sept. 11, 2014).

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