                                                                               January 27, 1978


78-6        MEMORANDUM OPINION FOR THE
            ADMINISTRATOR, DRUG ENFORCEMENT
            ADMINISTRATION

            Drug Enforcement Administration—
            Supergrade Positions Created by
            Reorganization Plan— Exemption From
            Competitive Service


   This is in response to your oral request for our opinion on the question
whether § 201(a) of the Crime Control Act of 1976 (Public Law 94-503; 90
Stat. 2425; 28 U .S.C . § 509, note) which excepts certain positions in the Drug
Enforcement Administration (DEA) from the competitive service,1 also applies
to four positions in your Agency established by § 3(b) o f Reorganization Plan
No. 1 of 1968, 3 CFR 1063 (1966-1970 Compilation), creating the Bureau of
Narcotics and Dangerous Drugs, the predecessor to DEA. Section 3(b)
provides:
       There are hereby established in the Department o f Justice, in
     addition to the positions transferred to that Department by this Plan,
     four new positions, appointment to which shall be made by the
     Attorney General in the competitive service. Two of those positions
     shall have compensation at the rate now or hereafter provided for
     GS-18 positions of the General Schedule and the other two shall have
     compensation at the rate now or hereafter provided for GS-16

  'Section 201(a) provides as follows:
       (a) Effective beginning one year after date o f the enactm ent of this A ct, the following
    positions in the Drug Enforcem ent Adm inistration (and individuals holding such
    positions) are hereby excepted from the com petitive service:
          (1) positions at G S-16, 1 7 ,and 18 o f the General Schedule under section 5332(a) of
    Title 5, United States C ode, and
          (2) positions at GS-15 o f the General Schedule which are designated as—
             (A) regional directors,
           , (B) office heads, or
             (C) executive assistants (or equivalent positions) under the im mediate supervi­
          sion o f the A dm inistrator (or the Deputy Adm inistrator) of the Drug Enforcement
          Adm inistration.

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      positions of the General Schedule (5 U .S.C . 5332). Each such
      position shall have such title and duties as the Attorney General shall
      prescribe.
    The positions created by the Reorganization Plan are generally referred to as
 “ SR ” or “ Supergrade-Equivalent” positions.
    The former Administrative Counsel in the Office of Management and
Finance, in a meticulous textual analysis of the pertinent statutes, concluded
that the four SR positions are not subject to § 201(a) and that they consequently
remain in the competitive service. His conclusion was based to a large extent on
the language o f § 201(a), which exempts from the competitive service
“ positions at GS-16, 17, and 18 o f the General Schedules- under Section
5332(a) of title 5, United States C o d e.” The memorandum points out that,
technically, the GS-16 and 18 positions established by the Reorganization Plan
are not under 5 U .S.C . § 5332(a). It also concludes that according to the
language o f the Reorganization Plan the four positions are in the Department of
Justice, while § 201(a) is limited to positions in DEA. The final argument is
that while the four SR positions were textually covered by the language of
§ 201(a) as it was originally introduced in the Senate,2 the statute as finally
enacted is less precise. In view o f the pertinent provisions o f the conference
report that the conference substitute “ adopts a modified and more restrictive
version of the Senate bill provisions” (H. Conf. Rept. No. 94-1723, 94th
Cong., 2d sess. 32, 1976), the m emorandum takes the position that § 201(a) is
to be narrowly construed; hence, since there are doubts as to the coverage o f the
four SR positions by the 1976 Act, they should be excluded from its operation.
   Our difficulty with this approach is that it makes distinctions in the
application of the legislation having no relevance to its purpose. That purpose,
in the words of Senator Percy, the sponsor o f the amendment on which § 201 is
based, was to
     . . . place these DEA supervisory positions on a basis comparable to
     those o f the FBI. Certainly there is a need for greater managerial
     flexibility and for the ability to move people about at one policy­
     making level in a law enforcem ent agency of this kind. (122 Cong.
     Rec. S 12434 (Daily ed ., July 26, 1976)).
   According to the conference report, the final bill adopts a more restrictive
version. That version, however, consists essentially o f providing that the bill
would not apply to all DEA employees in G S-15, but only to those now listed in
§ 201(a)(2), thereby giving greater protection under the Veterans Preference
Act to those who have served with the DEA for more than a year. In other
words, the bill, as finally enacted, exempts certain classes o f employees from
the impact of the original am endm ent, based apparently on the congressional
determination that GS-15 employees who are not regional directors, office
heads, or executive assistants do not hold policym aking positions, and that the

  2The pertinent language was "p o sitio n s . . . to which grades GS-15 or above o f the General
Schedule under section 5332(a) o f title 5, U nited States C ode, apply . . . . ” (122 Cong. Rec. S
12434 (Daily ed. July 26, 1976)).

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purpose of the amendment can be carried out even if policymaking employees
who served for more than a year would continue to enjoy the benefits of the
Veterans Preference Act with respect to personnel actions other than reduc­
tions in rank or pay.
   An interpretation of the statute excepting SR positions from its operation
would be contrary to that purpose. To begin with, we doubt that Congress was
aware of the existence of SR positions as opposed to the GS classification.
Moreover, the four SR positions do not represent any particular class of
positions which would render it rational to except them from the congressional
determination that the Administrator should have greater flexibility over
policymaking positions. Thus, while some of the Assistant Administrators in
DEA have a GS rating, one is an SR; the same applies to the positions of
Director and division heads. The determination as to whether a position should
be in the GS or SR classification apparently was not made on the basis of the
consideration that it involved less policymaking than a GS position, but at
random, possibly on the basis of available slots in either classification.
Similarly, we have been advised that at least one of the present top officials at
DEA was moved from an SR to a GS position when he received a new
assignment.
   We therefore conclude that a distinction between a GS position and its SR
equivalent is not consistent with the statutory purpose; hence, § 201(a) is to be
read as being applicable to SR as well as to GS positions.

                                            L eo n U   lm an

                                D eputy Assistant Attorney General
                                                     Office o f Legal Counsel




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