          Construction o f § 406 of the Federal Employees Pay
                      Comparability Act of 1990


Section 4 06 o f the Federal E m ployees Pay C om parability Act o f 1990 does not extend the authority to
   m ake bon u s paym ents to em ployees at the N ew York Field D ivision o f the Federal Bureau o f In­
   vestigation pursuant to section 601 of the Intelligence A uthorization Act for fiscal years 1989 and
    1990 b ey o n d the ex p iration date of the dem onstration project established by section 601.


                                                                                            August 23, 1993


                                   M   em orandum          O p in io n   fo r th e

                               A s s is t a n t D i r e c t o r , L e g a l C o u n s e l
                                F ederal B u r ea u         of   I n v e s t ig a t io n


   This m em orandum responds to your request for our opinion whether § 406 of
the Federal Em ployees Pay Comparability Act of 1990 (“FEPCA”), 104 Stat.
1427, 1467,1 preserves extraordinary benefits payable under § 601 o f the Intelli­
gence A uthorization Act, Fiscal Y ear 1989, Pub. L. No. 100-453, 102 Stat. 1904,
 1911 (1988), as am ended by the Intelligence Authorization Act, Fiscal Year 1990,
Pub. L. No. 101-193, § 601, 103 Stat. 1701, 1710 (1989), even after expiration of
§ 601 ’s paym ent authority. We conclude that § 406 does not preserve the § 601
benefits beyond the expiration of the latter provision.
   Section 601 establishes a demonstration project that attempts to improve re­
cruitm ent and retention at the New Y ork Field Division (“NYFD”) of the Federal
Bureau of Investigation (“FBI”) by increasing pay. See H.R. Rep. No. 100-591(1),
at 11-12 (1988), reprinted in 1988 U .S.C.C.A.N. 2469, 2479-80. Pursuant to
§ 601, any FBI em ployee transferred to the NYFD receives a lump sum payment of
up to $20,000, conditioned upon the em ployee’s agreement to serve at least three
years in that office. § 601(a)(1). In addition, all employees in the NYFD receive
periodic bonus paym ents o f between 20 and 25% o f their basic pay for the period
covered by the bonus. § 601(a)(2). Section 601(b) provides that these benefits
will term inate after five years. We understand from you that the program will end
on Septem ber 30, 1993.
    FEPCA institutes a system of pay adjustments for general schedule employees
throughout the Federal government, including locality pay to accommodate the
higher cost o f living in certain areas. Under FEPCA, special agents in the NYFD
currently receive a 16% increase over base pay to account for New Y ork’s higher
cost o f living. Sim ilarly, support staff who receive pay under the general schedule

   1   FEPCA was enacted as § 529 of the Treasury, Postal Service and General Government Appropriations
Act, 1991, Pub L. No. 101-509, 104 Stat. 1389 (1990). All references to provisions o f FEPCA in this
memorandum will cite the internal section num bers and corresponding pages in the statutes at large.

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                      Construction o f § 406 o f the F E P C A ct o f 1990


receive an 8% increase. Support staff who receive pay under the federal wage
system do not receive any increase. See FEPCA §§ 101, 404, 104 Stat. at 1429-30,
1466; Exec. Order No. 12786, Schedule 9, reprinted in 5 U.S.C. § 5332 note
(Supp. Ill 1991).
   Thus, § 601 and FEPCA each provide extra pay for NYFD employees (except
for wage employees who receive benefits under § 601 but not FEPCA). F E P C A ’s
§ 406, however, instructs the Office of Personnel Management (“O PM ”) to coordi­
nate the two programs to ensure that their payments are not cumulated:

          Notwithstanding [§601], as amended, the Office of Personnel
       M anagement shall reduce the rate of periodic payments under such
       section as the provisions o f this Act [FEPCA] are implemented:
       Provided, That no such reduction results in a reduction of the total
       pay for any employee o f the New York Field Division of the Fed­
       eral Bureau of Investigation. Notwithstanding [§ 601], the Office of
       Personnel M anagement may make such periodic payments inappli­
       cable to employees newly appointed to, or transferred to, the New
       York Field Division on or after January 1, 1992.

    The main clause in the first sentence of § 406 clearly does not authorize a con­
tinuation of § 601 pay beyond the life of the demonstration project. On the con­
trary, it expressly directs OPM to reduce § 601 payments to NYFD employees as
FEPCA is implemented. The second sentence of § 406 also contemplates the cur­
tailing of § 601; it instructs that employees hired after January 1, 1992, need not
receive any § 601 benefits.
    Notwithstanding this general thrust o f § 406, it has been suggested that the pro­
viso in the first sentence might be intended as independent authority to
“grandfather” current NYFD employees with continued extra pay at the § 601
level. The suggestion is that the proviso forbids any reduction in the total pay o f
NYFD employees as a result of a reduction in § 601 benefits. Since the term ina­
tion of § 601 benefits will cause a decrease in the pay of NYFD em ployees
(because FEPC A ’s benefits are lower and also do not extend to wage employees),
it is urged that the proviso would prevent any reduction in pay by authorizing con­
tinued pay at the § 601 level.
    This suggestion misconstrues the purpose o f the proviso. As indicated above,
the main clause o f § 406 directs OPM to reduce § 601 payments in response to
FEPCA. That clause, however, does not specify by how much the payments are to
be reduced. It is the proviso that limits O PM ’s discretion in this regard. T he pro­
viso precludes any reduction of § 601 benefits that “results in a reduction o f the
total pay for any employee of the [NYFD].” In effect, this means that OPM may
not reduce § 601 benefits by more than one dollar for every dollar introduced un­
der FEPCA; if it did, an em ployee’s total pay would be reduced, in violation o f the

                                              35
                                  Opinions o f th e Office o f L eg a l Counsel


proviso. Thus, for each reduction in § 601 paym ents implemented pursuant to the
main clause o f § 406, the proviso caps the reduction at the amount of FEPCA dol­
lars that the em ployee receives, which prevents any net loss of pay.
    It m ust be understood that the proviso’s protection applies only with respect to
O PM ’s reduction o f § 601 benefits pursuant to § 406. This much is established by
the phrase, “no such reduction,” w hich unmistakably links the proviso’s operation
with the preceding clause. See also 2A Norman J. Singer, Sutherland Statutory
Construction §§ 47.08-.09 (5th ed. 1992) (in general, a proviso should be strictly
construed to relate to the enactment o f which it is part). In this case, the reduction
o f pay will occur as a result of the winding down o f § 601 ’s internal clock, and not
pursuant to § 406. Thus, the proviso will not be triggered. Accordingly, § 406
cannot be said to authorize continued extra pay at the § 601 rate.2



                                                                 W ALTER DELLINGER
                                                           A cting A ssistant Attorney General
                                                                 Office o f Legal Counsel




     2    We can find no references in the legislative history of FEPCA (nor were any presented to us) to suggest
that § 406 was intended to continue § 601 benefits beyond their natural span.



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