                                                                January 27, 1978


78-5      MEMORANDUM OPINION FOR THE
          ADMINISTRATOR, DRUG ENFORCEMENT
          ADMINISTRATION

          Drug Enforcement Administration—
          Supergrade Positions—Exemption From
          Competitive Service


   This is in response to your inquiry raising four questions involving the
interpretation o f certain aspects o f the Percy amendment to the Crime Control
Act o f 1976.
   The main import o f the Percy am endm ent, § 201 o f the Crime Control Act of
1976 (Public Law 94-503; 90 Stat. 2425; 28 U .S.C . 509 note), is to except from
the competitive service all positions in the Drug Enforcement Administration
(DEA) which are at levels GS-16, 17, and 18 of the General Schedule, and
certain positions at GS-15 (“ subsection (a) positions” ). Subsection (c)(2) of
§ 201 provides:
        (2)    Effective beginning one year after the date o f the enactment of
     this Act, an individual in a position described in subsection (a) may
     be reduced in rank or pay by the Administrator within the Drug
     Enforcement Administration if—
            (A) Such individual has been continuously employed in such
          position since the date o f the enactment of this Act, and
             (B) The adm inistrator determines, in his discretion, that such
          action would promote the efficiency o f the service.
     Any individual reduced in rank or pay under this paragraph shall be
     paid in accordance with subsection (d).
   Under subsection (d), an employee reduced in rank or pay pursuant to
subsection (c)(2) is to receive the basic pay he was receiving immediately
before such reduction in rank or pay; under subsection (c)(3), however, he is
denied the benefits o f the veterans’ preference provisions o f 5 U .S.C . §§ 7512,
7701.
  Questions 1 and 2 address themselves to the following issue presented by
subsection (c)(2). Pursuant to that subsection the Administrator, effective 1

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year after the approval o f the statute (October 15, 1976), may reduce in rank or
pay an individual in a subsection (a) position if such individual has been
continuously em ployed in such position since the date of the enactment of the
Act. The problem raised by Questions 1 and 2 is whether the phrase
“ continuously employed in such position” refers to the specific position which
the employee holds at the time at which the reduction in rank or pay is
effectuated, or to any subsection (a) position. In other words, does subsection
(c)(2) apply to an employee only if he has been continuously employed in the
same position since the date of the approval of the Act, or is it sufficient if he
has been continuously em ployed in any subsection (a) position?
   The legislative history of the Act is of little help in solving this problem.
W hat is now § 201 was introduced by Senator Percy as an amendment to the
bill during the debate on the floor o f the Senate, 122 Cong. Rec. S 12434
(Daily ed ., July 26, 1976). Senator Percy’s explanation of the amendment
contained the following statement as to its purpose:
     . . . It [the amendment] would place these DEA supervisory positions
    on a basis comparable to those at the FBI. Certainly there is a need
    for greater managerial flexibility and for the ability to move people
    about at one policy-m aking level in a law enforcement agency of this
    kind. Id.
  The bill passed by the House did not contain a corresponding provision. The
Conference Committee modified the text of the Percy amendment. The
conference report, however, does not give any reasons for action taken by the
conference except to state:

     Drug Enforcement Administration
       The Senate bill would make certain DEA positions now in the
     competitive service into excepted service positions.
       The House amendment had no parallel provisions.
       The conference substitute adopts a modified and more restrictive
     version o f the Senate bill provisions. H. Conf. Rept. 94-1723, p .32.
   It is our opinion that subsection (c)(2) applies if the employee has served
continuously since the approval o f the Act in any subsection (a) position, and
he need not have served continuously in the same position. If it were otherwise,
the Administrator could totally deprive an employee of his salary retention
rights under subsection (d) by the expedient of transferring him from one
position to another or by promoting or demoting him. As shown above, the
purpose o f § 201 is to enable the Administrator to exercise greater control over
the policymaking positions in his agency, and to protect the salary status of
those who at the time o f the approval of the Act were already serving in a
subsection (a) position. This does require that the employee remain frozen in
the position he held at the time o f the enactment of the statute if he is to keep his
retention rights. Indeed, the very managerial flexibility which the Act is
designed to achieve would be jeopardized by the contrary view. A considerate


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Administrator may well hesitate to reassign or promote an employee if that
action would result in the loss of the em ployee’s salary retention rights.1
   For those reasons we conclude that the requirements of paragraph (c)(2) are
met if the employee held any— but not necessarily the same— subsection (a)
position since the enactment of the statute.
  Question 3 asks for an interpretation of paragraph (c)(3), in particular the
phrase “ any reduction in rank or pay (under paragraph (2) or otherw ise).”
   Paragraph (c)(3) reads:
        (3)    The provisions of sections 7512 and 7701 of title 5, United
      States Code, and otherwise applicable Executive orders, shall not
      apply with respect to actions taken by the Administrator under
      paragraph (1) or any reduction in rank or pay (under paragraph (2) or
      otherwise) of any individual in a position described in subsection(a).
   Paragraph (c)(3) removes from the protection of the Veterans Preference Act
(5 U .S.C . §§ 7512, 7701) certain employees of DEA serving in subsection (a)
positions. The first clause exempts actions taken under paragraph (c)(1), that is,
all adverse personnel actions— removal, suspensions for more than 30 days,
furloughs without pay, or reductions in rank or pay— affecting those who have
served in subsection (a) positions for less than a year. Clause 2 removes from
the application of the Veterans Preference Act any reduction in pay or rank
(under paragraph 2 or otherwise) of any person serving in a subsection (a)
position. Reductions in rank or pay under paragraph 2 affect those who have
served continuously in a subsection (a) position since the approval of the Act. If
the words “ or otherw ise” were lacking, paragraph (c)(3) would remove from
the protection of the Veterans Preference Act those employees holding a
subsection (a) position who have served less than a year and those who have
served continuously since the approval of the Act. Veterans’ preference,
however, would be continued for the intermediary group, i.e., those who have
served for more than a year, but not since the approval o f the statute. There
appears to be no rational basis for retaining veterans’ preference for that group
but to deny it to those who have served for shorter or longer periods. Nor is
there anything to indicate that Congress intended to achieve that result. It must
be assumed that the words “ or otherw ise” were designed to extend the denial
of veterans’ preference protection to those who fall into that intermediary
group. The import of the second clause of paragraph (c)(3), therefore, is to
deny veterans’ preference to any subsection (a) employee who is reduced in
rank or pay, regardless of his length o f service.2
   Question 4 asks whether the requirement of continuous employment in
subsection (a) position within the meaning of paragraph (c)(2) has been met
where a person has been selected for such a position by the Administrator and
has been acting in that position prior to the approval of the Act, but where the


   'Indeed, he might even be reluctant to demote if that action would have the additional result of
depriving the em ployee o f his retention rights.
   2W e realize that there is a certain overlap between clauses (I) and (2) o f paragraph (c)(3) since
clause ( I ) also covers the reduction in rank or pay o f those who have served for less than a year.

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approval o f the Civil Service Commission to the appointment was given after
that date. The answer to this question affects the em ployee’s entitlement to
retention pay, which presupposes that he has served continuously in a
subsection (a) position since the approval of the Act.
   This question must be answered in the negative. Pursuant to 5 U .S.C .
§ 3324, an appointment to a position in grades G S-16, 17, or 18 may be made
by an agency only on the approval o f the qualifications of the proposed
appointee by the Civil Service Commission. An official therefore cannot be
employed in such a position prior to that date. Service in an acting capacity is
merely a “ detail” (see 5 U .S.C . Ch. 33, Subchapter III), and a person cannot
receive the compensation in addition to that of his regular pay for serving in an
acting capacity in another position. 5 U .S.C . § 5535. We conclude that formal
appointment to a position in G S-16, 17, or 18 pursuant to Civil Service
Commission approval is a prerequisite for fulfilling the requirement of
continuous employm ent since the date o f the approval of the Act and the
concomitant entitlem ent to retention pay.
   Appointment to a position in the SR category3 and in GS-15 does not require
prior approval by the Civil Service Commission; hence, there would appear to
be no need for “ acting” details in connection with those positions. We
therefore assume that the fourth question does not arise with respect to such
appointments. If it does, the answer will depend on the specific circumstances
involved.

                                                           L eon U lm an
                                              D eputy Assistant Attorney General
                                                             Office o f Legal Counsel




  ^The SR category covers the four supergrade positions created by § 3(b) o f Reorganization Plan
No. 1 o f 1968.

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