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 of certain aspects of the Percy amendment to the Crime Control 

Act of 1976.

The main import of the Percy amendment, § 201 of 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 of 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 of the enactment of this Act, and

(B) The administrator determines, in his discretion, that such 

action would promote the efficiency of 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 of the veterans’ preference provisions of 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 of the statute (October 15, 1976), may reduce in rank or 

pay an individual in a subsection (a) position if such individual has been 

continuously employed 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 employed in any subsection (a) position?

The legislative history of the Act is of little help in solving this problem. 

What is now § 201 was introduced by Senator Percy as an amendment to the 

bill during the debate on the floor of 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-making 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 of 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 of 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 of § 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 of 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 of 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 employee’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 otherwise).”

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 otherwise” 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 of 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 otherwise” 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 of 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 employee of his retention rights.

2We realize that there is a certain overlap between clauses (I) and (2) of paragraph (c)(3) since 

clause ( I ) also covers the reduction in rank or pay of those who have served for less than a year.

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approval of the Civil Service Commission to the appointment was given after 

that date. The answer to this question affects the employee’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 GS-16, 17, or 18 may be made 

by an agency only on the approval of 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 GS-16, 17, or 18 pursuant to Civil Service 

Commission approval is a prerequisite for fulfilling the requirement of 

continuous employment since the date of the approval of the Act and the 

concomitant entitlement 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 e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

^The SR category covers the four supergrade positions created by § 3(b) of Reorganization Plan 

No. 1 o f 1968.

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