b'(Slip Opinion)\n\nWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee\nUnder 18 U.S.C. \xc2\xa7 207(d)(1)(B)\nSection 207(d)(1)(B) of title 18 encompasses any Executive Branch employee who\nreceives a rate of basic pay of exactly the amount payable for level I of the Executive\nSchedule, regardless of whether the employee\xe2\x80\x99s pay is required to be set at level I by\nlaw or is set at level I by administrative action.\nAn employee\xe2\x80\x99s \xe2\x80\x9crate of pay\xe2\x80\x9d in section 207(d)(1)(B) refers to the employee\xe2\x80\x99s rate of basic\npay, exclusive of any other forms of compensation such as bonuses, awards, allowances, or locality-based comparability payments.\nJanuary 19, 2017\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nDEPARTMENT OF HEALTH AND HUMAN SERVICES\nSection 207(d) of title 18 imposes stringent post-employment restrictions on \xe2\x80\x9cvery senior\xe2\x80\x9d employees in the Executive Branch. The provision\napplies to, among others, \xe2\x80\x9cany person who . . . is employed in a position\nin the executive branch of the United States (including any independent\nagency) at a rate of pay payable for level I of the Executive Schedule.\xe2\x80\x9d 18\nU.S.C. \xc2\xa7 207(d)(1)(B). Your office has asked two questions about the\nmeaning of the phrase \xe2\x80\x9cemployed in a position . . . at a rate of pay payable\nfor level I\xe2\x80\x9d: first, whether that phrase encompasses only those employees\nwho are paid pursuant to a statute setting pay for the position exactly at\nlevel I, or whether it extends to employees who may be paid within a\nrange and whose pay has been administratively set at exactly the amount\npayable for level I; and, second, whether \xe2\x80\x9crate of pay\xe2\x80\x9d refers only to\nthe employee\xe2\x80\x99s basic rate of pay, or whether it includes additional pay\n(such as bonuses, awards, or allowances) that the employee may receive.\nLetter for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from William B. Schultz, General Counsel,\nDep\xe2\x80\x99t of Health and Human Services at 3 (May 5, 2016) (\xe2\x80\x9cHHS Opinion\nRequest\xe2\x80\x9d); see also Letter for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from David J. Apol,\nGeneral Counsel, Office of Government Ethics at 3 (Aug. 5, 2016) (\xe2\x80\x9cOGE\nViews\xe2\x80\x9d) (clarifying HHS\xe2\x80\x99s first question). 1\n1 In preparing this opinion, we received the views of the Office of Government Ethics\n(\xe2\x80\x9cOGE\xe2\x80\x9d), the Department of Veterans Affairs (\xe2\x80\x9cVA\xe2\x80\x9d), and the Treasury Department. See\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nWe have already addressed your first question, albeit in dictum, in an\nopinion about the application of section 207(d)(1)(B) to certain Treasury\nDepartment employees. See Applicability of 18 U.S.C. \xc2\xa7 207(d) to Certain\nEmployees in the Treasury Department, 24 Op. O.L.C. 284 (2000)\n(\xe2\x80\x9cTreasury Employees\xe2\x80\x9d). There, we concluded that employees compensated at a \xe2\x80\x9crate of pay\xe2\x80\x9d exceeding level I of the Executive Schedule are\nnot subject to section 207(d)\xe2\x80\x99s post-employment bar. In reaching that\nconclusion, we stated that section 207(d)(1)(B) does not apply exclusively\nto officials listed in 5 U.S.C. \xc2\xa7 5312, which sets the pay for Cabinet\nmembers and other high-level officials at level I, but instead sweeps in\n\xe2\x80\x9cany executive branch employee who is paid the same level I rate of pay\nthat the officials listed in [section 5312] receive.\xe2\x80\x9d Treasury Employees,\n24 Op. O.L.C. at 287 n.2. The opinion further observed that \xe2\x80\x9c[i]f the\nsalary of the Treasury employees in question had been set exactly at the\nrate for level I, subsection (d) by its terms would seem to apply.\xe2\x80\x9d Id. at\n287. Our Treasury Employees opinion therefore appeared to reject the\npossibility that section 207(d)(1)(B) applies only to employees in positions for which the pay is fixed at level I by statute.\nBecause your office\xe2\x80\x99s opinion request implicitly suggests that we revisit this question, and because other interested agencies have expressed\ntheir view that section 207(d)(1)(B) should be read to apply only to employees occupying positions for which the pay is legally required to be set\nat level I, see OGE Views at 3; VA Views at 1; Treasury E-mail, we have\nconsidered anew the scope of section 207(d)(1)(B). We once again conclude, however, that the provision encompasses all Executive Branch\nemployees who receive a \xe2\x80\x9crate of pay\xe2\x80\x9d equal to the amount payable for\nlevel I, whether their pay is required by law to be set at level I or is set at\nlevel I by administrative action.\nWith respect to your second question, we conclude that an employee\xe2\x80\x99s\n\xe2\x80\x9crate of pay\xe2\x80\x9d in section 207(d)(1)(B) refers to the employee\xe2\x80\x99s rate of basic\npay, exclusive of any other forms of compensation such as bonuses,\nawards, allowances, or locality-based comparability payments.\nOGE Views; Letter for Karl R. Thompson, Principal Deputy Assistant Attorney General,\nOffice of Legal Counsel, from Leigh Bradley, General Counsel, Dep\xe2\x80\x99t of Veterans Affairs\n(Aug. 10, 2016) (\xe2\x80\x9cVA Views\xe2\x80\x9d); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from Rochelle F. Granat, Assistant General Counsel,\nDep\xe2\x80\x99t of the Treasury, Re: FW: Formal opinion request re application of 18 USC 207(d)\n(July 28, 2016 7:03 PM) (\xe2\x80\x9cTreasury E-mail\xe2\x80\x9d).\n\n2\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\nI.\nA.\nSection 207(d) of title 18 restricts the conduct of \xe2\x80\x9cvery senior\xe2\x80\x9d Executive Branch employees once they have left their positions, and provides\nthat violations of these restrictions may give rise to criminal and civil\npenalties. See 18 U.S.C. \xc2\xa7\xc2\xa7 207(d), 216. The first half of the subsection\ndefines the types of employees to whom section 207(d) applies and states\nthe applicable prohibitions:\n(1) RESTRICTIONS.\xe2\x80\x94In addition to the restrictions set forth in\nsubsections (a) and (b) [of section 207], any person who\xe2\x80\x94\n(A) serves in the position of Vice President of the United\nStates,\n(B) is employed in a position in the executive branch of the\nUnited States (including any independent agency) at a rate of pay\npayable for level I of the Executive Schedule or employed in a position in the Executive Office of the President at a rate of pay payable for level II of the Executive Schedule, or\n(C) is appointed by the President to a position under section\n105(a)(2)(A) of title 3 or by the Vice President to a position under\nsection 106(a)(1)(A) of title 3,\nand who, within 2 years after the termination of that person\xe2\x80\x99s service\nin that position, knowingly makes, with the intent to influence, any\ncommunication to or appearance before any person described in paragraph (2), on behalf of any other person (except the United States),\nin connection with any matter on which such person seeks official\naction by any officer or employee of the executive branch of the\nUnited States, shall be punished as provided in section 216 of this\ntitle.\nId. \xc2\xa7 207(d)(1). Subsection (d)(2), in turn, specifies the individuals with\nwhom \xe2\x80\x9cvery senior\xe2\x80\x9d employees may not communicate after leaving their\npositions:\n(2) PERSONS WHO MAY NOT BE CONTACTED.\xe2\x80\x94The persons referred to in paragraph (1) with respect to appearances or communications by a person in a position described in subparagraph (A), (B), or\n(C) of paragraph (1) are\xe2\x80\x94\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\n(A) any officer or employee of any department or agency in\nwhich such person served in such position within a period of 1\nyear before such person\xe2\x80\x99s service or employment with the United\nStates Government terminated, and\n(B) any person appointed to a position in the executive branch\nwhich is listed in section 5312, 5313, 5314, 5315, or 5316 of\ntitle 5.\nId. \xc2\xa7 207(d)(2). Thus, under section 207(d), a former official meeting the\ndescription of a \xe2\x80\x9cvery senior\xe2\x80\x9d employee is barred from communicating\nwith anyone who serves in his former agency, as well as with anyone\nserving in an Executive Schedule position in another federal agency, for\ntwo years after he has left the \xe2\x80\x9cvery senior\xe2\x80\x9d position, if that communication is intended to influence official agency business and is not made on\nbehalf of the United States. 2\nThe prohibition in section 207(d) is broader than the so-called \xe2\x80\x9ccooling\noff \xe2\x80\x9d prohibition in another part of section 207, section 207(c), which\napplies to \xe2\x80\x9csenior\xe2\x80\x9d employees. Section 207(c) bars communications only\nwith individuals in the senior employee\xe2\x80\x99s former agency and applies only\nfor one year following the employee\xe2\x80\x99s departure. See id. \xc2\xa7 207(c)(1).\nMoreover, section 207(c)(2)(C) allows the Director of OGE to waive\nthe prohibition for some classes of senior employees if he makes particular findings, and section 207(h) allows him to narrow section 207(c)\xe2\x80\x99s\nscope in another respect. See id. \xc2\xa7 207(c)(2)(C), (h). Section 207(d), on\nthe other hand, is not subject to waiver or narrowing.\nB.\nIn the Treasury Employees opinion, our Office addressed a question\nabout the scope of section 207(d)(1)(B). 24 Op. O.L.C. at 284. The opinion concerned some categories of Treasury employees in the Internal\nRevenue Service (\xe2\x80\x9cIRS\xe2\x80\x9d) and the Office of Thrift Supervision (\xe2\x80\x9cOTS\xe2\x80\x9d).\nThese IRS and OTS positions were not listed in 5 U.S.C. \xc2\xa7 5312, 3 and the\n2\n\nSection 207( j) exempts communications made on behalf of certain other entities or\nfor certain specified purposes. See 18 U.S.C. \xc2\xa7 207( j).\n3 Section 5312 of title 5 lists Cabinet members along with the United States Trade Representative, the Director of the Office of Management and Budget, the Commissioner of\nSocial Security, the Director of National Drug Control Policy, the Chairman of the Board\nof Governors of the Federal Reserve System, and the Director of National Intelligence.\n\n4\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\nstatutes authorizing their salaries did not declare that they would be paid\nat level I of the Executive Schedule. Instead, Treasury had statutory\nauthority to set those salaries within a specified range including and also\nexceeding level I (in the case of the IRS employees) or \xe2\x80\x9cwithout regard to\nthe provisions of other laws applicable to officers or employees of the\nUnited States\xe2\x80\x9d (in the case of the OTS employees). Treasury Employees,\n24 Op. O.L.C. at 285. As a result of this administrative discretion, all\nof the employees in question had salaries exceeding level I. Treasury\nasked whether the employees would therefore be subject to the more\nsevere post-employment restrictions in section 207(d) instead of those in\nsection 207(c). Id.\nWe determined that the Treasury employees in question were not \xe2\x80\x9cemployed in a position in the executive branch of the United States . . . at\na rate of pay payable for level I of the Executive Schedule.\xe2\x80\x9d Id. at 286.\nThe basis for our conclusion, however, was not that the salaries for the\nIRS and OTS positions were not set at level I by statute. See id. at 287\nn.2. Instead, we reasoned that the phrase \xe2\x80\x9cemployed in a position . . . at\na rate of pay payable for level I\xe2\x80\x9d signified that section 207(d)(1)(B)\n\xe2\x80\x9capplies only to employees whose pay is the same as that of a level I\nofficial.\xe2\x80\x9d Id. at 286. We contrasted that phrase with language in section\n207(c) that, at the time of our opinion, covered employees whose basic\nrate of pay was \xe2\x80\x9cequal to or greater than the rate of basic pay payable\nfor level 5 of the Senior Executive Service,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 207(c)(2)(A)(ii)\n(Supp. IV 1998) (emphasis added), and we stated that \xe2\x80\x9cCongress presumably was aware that various statutes authorized pay above that for\nlevel I, yet chose the narrower and more targeted language of subsection\n(d).\xe2\x80\x9d Treasury Employees, 24 Op. O.L.C. at 286.\nWe acknowledged that our reading, which meant that officials receiving pay above level I would be subject to more lenient post-employment\nrestrictions than lesser-paid officials receiving exactly the level I amount,\n\xe2\x80\x9cmay appear to lead to anomalous consequences.\xe2\x80\x9d Id. Section 207 seemingly uses a former official\xe2\x80\x99s salary as a proxy for ability to exercise\ninfluence, so that higher salaries generally result in more stringent postemployment restrictions. Id. But we concluded that the apparent anomaly\ncould be resolved by reference to the statute\xe2\x80\x99s purpose. The officials listed\nin 5 U.S.C. \xc2\xa7 5312 include Cabinet secretaries and other high-level officials; the IRS and OTS employees, by contrast, were not in leadership\npositions and therefore lacked the responsibility and stature of those\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\ndesignated as level I officials by statute. Treasury Employees, 24 Op.\nO.L.C. at 286\xe2\x80\x9387. Thus, we reasoned that, even though the IRS and OTS\nemployees received a higher salary than officials paid at level I, the IRS\nand OTS officials would \xe2\x80\x9chave less ability to exercise post-employment\ninfluence than those listed in [section 5312], and their former positions\n[would] also be far less likely to create an appearance of undue influence.\xe2\x80\x9d Treasury Employees, 24 Op. O.L.C. at 287.\nThe opinion noted, however, that \xe2\x80\x9c[i]f the salary of the Treasury employees in question had been set exactly at the amount paid for level I,\nsubsection (d) by its terms would seem to apply.\xe2\x80\x9d Id. In other words, we\ndetermined that if a statute permitted an employee\xe2\x80\x99s pay to fall within a\nrange and, within that range, to equal or exceed level I, the agency\xe2\x80\x99s\ndecision to set the employee\xe2\x80\x99s pay exactly at level I would make the\nemployee \xe2\x80\x9cvery senior,\xe2\x80\x9d whatever the nature of the employee\xe2\x80\x99s position,\nauthority, and stature. We recognized that such a result, in the context of\nthese IRS and OTS employees, was \xe2\x80\x9ctruly anomalous.\xe2\x80\x9d Id. But we explained that, \xe2\x80\x9cin view of the present opinion,\xe2\x80\x9d it would seem that \xe2\x80\x9cany\nfuture decision to set a salary exactly at the rate for level I will presumably reflect at least an administrative determination that the more stringent\npost-employment restrictions should apply.\xe2\x80\x9d Id.\nOur analysis in the Treasury Employees opinion implicitly assumed\nthat \xe2\x80\x9crate of pay\xe2\x80\x9d in section 207(d)(1)(B) refers to the employee\xe2\x80\x99s annual\nsalary. See, e.g., id. at 285 (\xe2\x80\x9cWe understand that there are some Treasury\nemployees . . . whose salaries exceed the rate of pay for level I.\xe2\x80\x9d). 4 But\nthe opinion did not explicitly consider what constitutes an employee\xe2\x80\x99s\n\xe2\x80\x9crate of pay\xe2\x80\x9d for purposes of the comparison to level I.\nC.\nYou have advised us that HHS has several pay systems under which it\nsets the base pay for certain employees within a flexible range. HHS\nOpinion Request at 1. You provided the example of the pay system for\nmembers of the Silvio O. Conte Senior Biomedical Research Service\n4\n\nWe did note that some of the IRS employees in question were potentially eligible to\nreceive \xe2\x80\x9ccritical pay\xe2\x80\x9d under 5 U.S.C. \xc2\xa7 9502(a) (Supp. IV 1998). See Treasury Employees,\n24 Op. O.L.C. at 285. That provision, however, enabled the Office of Management and\nBudget (as of 2000) to \xe2\x80\x9cfix the rate of basic pay\xe2\x80\x9d for those positions up to a certain\namount. 5 U.S.C. \xc2\xa7 9502(a) (Supp. IV 1998).\n\n6\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\n(\xe2\x80\x9cSBRS\xe2\x80\x9d), which consists of \xe2\x80\x9cindividuals outstanding in the field of\nbiomedical research or clinical research evaluation.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 237(b)\n(2012). 5 The Secretary of Health and Human Services has the authority to\ndetermine SBRS members\xe2\x80\x99 \xe2\x80\x9cpay,\xe2\x80\x9d which, up until December 13, 2016,\ncould be no less than \xe2\x80\x9cthe minimum rate payable for GS-15 of the General\nSchedule\xe2\x80\x9d and no more than \xe2\x80\x9cthe rate payable for level I of the Executive\nSchedule unless approved by the President.\xe2\x80\x9d Id. \xc2\xa7 237(d)(2). While the\npay for SBRS members was therefore, for a time, capped by default at\nlevel I, your office has informed us that there are pay systems for other\nkinds of HHS employees that \xe2\x80\x9ccontain no express limit\xe2\x80\x9d and \xe2\x80\x9ctherefore\npermit total individual pay to exceed level I.\xe2\x80\x9d HHS Opinion Request\nat 2. We also understand that HHS employees under all of these pay\nsystems may receive \xe2\x80\x9cvarious bonuses, awards, and allowances,\xe2\x80\x9d although\nthey do not receive locality-based comparability payments. Id. 6\nBecause some HHS employees paid under these flexible pay systems\nmay therefore receive a base salary of exactly the level I amount (cur-\n\n5\n\nAfter HHS\xe2\x80\x99s request for an opinion, Congress amended the SBRS provision, 42\nU.S.C. \xc2\xa7 237. See 21st Century Cures Act, Pub. L. No. 114-255, \xc2\xa7 3071, 130 Stat. 1033\n(2016). Among other changes, Congress renamed the entity (it is now the \xe2\x80\x9cSilvio O.\nConte Senior Biomedical Research and Biomedical Product Assessment Service\xe2\x80\x9d), and\nspecified that it is now composed of \xe2\x80\x9cindividuals outstanding in the field of biomedical\nresearch, clinical research evaluation, or biomedical product assessment.\xe2\x80\x9d Id. \xc2\xa7 3071(a).\nMore relevant to the present inquiry, Congress also changed the applicable pay cap for\nmembers: instead of being set at \xe2\x80\x9cthe rate payable for level I of the Executive Schedule\xe2\x80\x9d\n(absent presidential approval), it is now set at \xe2\x80\x9cthe amount of annual compensation\n(excluding expenses) specified in section 102 of title 3,\xe2\x80\x9d which is the President\xe2\x80\x99s yearly\nsalary of $400,000. Id. For two reasons, however, this recent development does not\nobviate HHS\xe2\x80\x99s question. First, the new pay cap still allows the members\xe2\x80\x99 pay to match or\nexceed the amount payable for level I of the Executive Schedule (currently, $207,800).\nSecond, our advice regarding the application of section 207(d)(1)(B) would still apply to\nSBRS members paid under the old version of 42 U.S.C. \xc2\xa7 237. For ease of reference, this\nopinion will continue to refer to the \xe2\x80\x9cSBRS\xe2\x80\x9d and the pay system in place before December 13, 2016 (the date of enactment of the 21st Century Cures Act).\n6 We understand that HHS interprets \xe2\x80\x9cpay\xe2\x80\x9d in 42 U.S.C. \xc2\xa7 237(d)(2) to refer to a member\xe2\x80\x99s base salary in addition to any applicable bonuses or allowances, so that, under the\nold SBRS pay system, the combination of all those forms of compensation could not\nexceed the level I threshold (absent presidential approval). HHS Opinion Request at 2;\nE-mail from Gretchen H. Weaver, Senior Ethics Counsel, Dep\xe2\x80\x99t of Health and Human\nServices, Re: Question related to section 207(d) opinion (Nov. 21, 2016 1:26 PM).\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nrently, $207,800 7), and some other HHS employees\xe2\x80\x94in particular, some\nSBRS members\xe2\x80\x94may receive a base salary below that amount but also\nreceive bonuses and allowances that bring them exactly to level I, your\noffice has asked us to clarify the scope of section 207(d)(1)(B). Id. at 2\xe2\x80\x933.\nOther interested agencies have explained that they too have pay systems\nunder which an employee\xe2\x80\x99s basic rate of pay, or the employee\xe2\x80\x99s basic rate\nof pay in combination with other bonuses, allowances, or forms of compensation, may equal or exceed the level I amount. See VA Views at 2\xe2\x80\x934;\nTreasury E-mail.\nII.\nWe first consider the more general question, namely, whether section\n207(d)(1)(B) applies to any employee whose \xe2\x80\x9crate of pay\xe2\x80\x9d is set by law or\nadministrative action at the level I amount, or only to employees whose\nrate of pay is set at level I by law. Although the particulars of their positions differ, OGE, VA, and Treasury all maintain that section 207(d)(1)(B)\nshould be read to apply only to an employee occupying a position for\nwhich the rate of pay is legally required to be set at level I, rather than to\nany employee whose rate of pay equals the level I rate. OGE Views at 1;\nVA Views at 1; Treasury E-mail.\nAs noted above, section 207(d) applies to, among others, \xe2\x80\x9cany person\nwho . . . is employed in a position in the executive branch of the United\nStates (including any independent agency) at a rate of pay payable for\nlevel I of the Executive Schedule.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 207(d)(1)(B). Under the\nmost straightforward and natural reading of that provision, it applies to\nany employee who (1) occupies a position in the Executive Branch, and\n(2) receives in that position a rate of pay equivalent to the \xe2\x80\x9crate of pay\npayable for level I.\xe2\x80\x9d See Treasury Employees, 24 Op. O.L.C. at 286.\nSection 207(d) would therefore apply to any Executive Branch employee\nwhose rate of pay currently equals $207,800\xe2\x80\x94whether by virtue of a\nstatute setting the pay for the employee\xe2\x80\x99s position at level I, or by virtue\nof the employee\xe2\x80\x99s pay having been set at that amount pursuant to a statute\nallowing for pay within a range that encompasses the level I amount. In\n\n7 Salary Table No. 2017-EX, Rates of Basic Pay for the Executive Schedule (EX) Effective January 2017, https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/\nsalary-tables/pdf/2017/EX.pdf.\n\n8\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\neither case, the portion of the employee\xe2\x80\x99s annual salary in each paycheck\nwould be the amount \xe2\x80\x9cpayable for level I\xe2\x80\x9d in the pay period.\nIn advancing an interpretation under which the provision would apply\nonly to employees whose rate of pay is set at level I by law, the agencies\nsuggest that section 207(d)(1)(B)\xe2\x80\x99s focus is on the pay designated for the\nposition, rather than the pay received by the employee in that position.\nThey suggest that the statutory phrase \xe2\x80\x9cat a rate of pay payable\xe2\x80\x9d ought to\nbe read to modify \xe2\x80\x9cposition\xe2\x80\x9d rather than \xe2\x80\x9cemployed,\xe2\x80\x9d so that section\n207(d) would apply only to those occupying a \xe2\x80\x9cposition . . . at a rate of\npay payable for level I.\xe2\x80\x9d According to the argument, when (for example)\nHHS sets the pay for an SBRS member pursuant to the agency\xe2\x80\x99s administrative discretion under 42 U.S.C. \xc2\xa7 237(d), HHS is not setting the pay for\nthe position of SBRS member. Instead, HHS is setting the pay for a particular individual. It therefore cannot be said (in the agencies\xe2\x80\x99 view) that\nthe rate of pay payable for the \xe2\x80\x9cposition\xe2\x80\x9d of SBRS member is the rate of\npay for level I, and section 207(d) would not apply to any SBRS member,\nno matter what the employee\xe2\x80\x99s actual pay.\nAs an initial matter, even if the phrase \xe2\x80\x9cat a rate of pay payable for\nlevel I\xe2\x80\x9d could be fairly construed to modify \xe2\x80\x9cposition\xe2\x80\x9d rather than \xe2\x80\x9cemployed,\xe2\x80\x9d it is not evident that that reading would produce the result the\nagencies propose. The agencies\xe2\x80\x99 argument assumes that an agency\xe2\x80\x99s\nsetting a salary for a particular position within a statutory range does not\nconstitute setting the pay for a \xe2\x80\x9cposition,\xe2\x80\x9d but rather involves setting the\npay for an individual employee. But it is not at all clear that this is true.\nAgencies do not employ individuals in a vacuum, but instead employ\nthem in particular positions that have prescribed duties, authorities, and\ncompensation (even if the possible compensation covers a range). That\nthe pay for a position may vary with the characteristics of the individual\nwho occupies it does not necessarily mean that the agency is not setting\nthe pay for the \xe2\x80\x9cposition.\xe2\x80\x9d\nIn any case, we do not think the agencies\xe2\x80\x99 proposed construction is\nconsistent with the statute\xe2\x80\x99s text. When the statute uses the term \xe2\x80\x9cposition\xe2\x80\x9d to define a provision\xe2\x80\x99s coverage, it consistently refers to a position\n\xe2\x80\x9cfor which\xe2\x80\x9d the pay is a certain rate or \xe2\x80\x9cfor which\xe2\x80\x9d a specified condition\nobtains. See 18 U.S.C. \xc2\xa7 207(c)(2)(A)(ii) (\xe2\x80\x9ca person . . . employed in a\nposition . . . for which that person is paid at a rate of basic pay which is\nequal to or greater than 86.5 percent of the rate of basic pay for level II of\nthe Executive Schedule\xe2\x80\x9d (emphasis added)); id. (\xe2\x80\x9ca person . . . employed\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nin a position . . . for which the rate of basic pay . . . was equal to or greater\nthan the rate of basic pay payable for level 5 of the Senior Executive\nService\xe2\x80\x9d (emphasis added)); id. \xc2\xa7 207(e)(7)(B) (\xe2\x80\x9ca former employee who\n. . . was employed in a position for which the rate of basic pay . . . is equal\nto or greater than the basic rate of pay payable for level IV of the Executive Schedule\xe2\x80\x9d (emphasis added)); see also id. \xc2\xa7 207(c)(2)(A)(iv) (\xe2\x80\x9ca\nperson . . . employed in a position which is held by an active duty commissioned officer of the uniformed services who is serving in a grade or\nrank for which the pay grade . . . is pay grade O\xe2\x80\x937 or above\xe2\x80\x9d (emphasis\nadded)). By contrast, when the statute refers to the rate of pay at which\na person is \xe2\x80\x9cemployed\xe2\x80\x9d or \xe2\x80\x9cpaid,\xe2\x80\x9d it uses the preposition \xe2\x80\x9cat.\xe2\x80\x9d See id.\n\xc2\xa7 207(c)(2)(A)(i) (\xe2\x80\x9ca person . . . employed at a rate of pay specified in or\nfixed according to subchapter II of chapter 53 of title 5\xe2\x80\x9d (emphasis added)); id. \xc2\xa7 207(c)(2)(A)(ii) (\xe2\x80\x9ca person . . . employed in a position . . . for\nwhich that person is paid at a rate of basic pay which is equal to or greater\nthan 86.5 percent of the rate of basic pay for level II of the Executive\nSchedule\xe2\x80\x9d (emphasis added)). We believe that the two instances of the\n\xe2\x80\x9cemployed . . . at a rate of pay payable\xe2\x80\x9d phrasing in 207(d)(1)(B) should\nbe understood in the same way as in these other provisions. It should\nmake no difference that additional words separate the prepositional phrase\nfrom the word it modifies. 8\nOne of the agencies also suggests that our interpretation renders the\nstatutory phrase \xe2\x80\x9cin a position\xe2\x80\x9d superfluous, because any person who \xe2\x80\x9cis\nemployed in the executive branch . . . at a rate of pay payable for level I\xe2\x80\x9d\nwould work just as well. See Treasury E-mail. But the canon against\nsuperfluity is not absolute, see Lockhart v. United States, 136 S. Ct. 958,\n966 (2016), and in any event, under our interpretation the phrase \xe2\x80\x9cin a\nposition\xe2\x80\x9d serves a function within the structure of section 207(d) as a\nwhole: the five instances of the phrase in subsections (d)(1)(A), (B), and\n(C) facilitate the hanging paragraph at the end of subsection (d)(1) and\n8\n\nEven if we disregarded the phrasing conventions used elsewhere in section 207, \xe2\x80\x9cat\xe2\x80\x9d\nwould be an awkward word to use to convey the agencies\xe2\x80\x99 preferred meaning. If the\nstatute were meant to apply only to positions for which the pay is set by law at the level I\namount, it would have been more natural to refer to a \xe2\x80\x9cposition with a rate of pay payable\nfor level I\xe2\x80\x9d rather than a \xe2\x80\x9cposition at a rate of pay payable for level I.\xe2\x80\x9d Treasury E-mail\n(acknowledging that \xe2\x80\x9cwith\xe2\x80\x9d would be the more natural word to use); see also Webster\xe2\x80\x99s\nThird New International Dictionary 2626 (2002) (defining \xe2\x80\x9cwith\xe2\x80\x9d as \xe2\x80\x9ccharacterized or\ndistinguished by\xe2\x80\x9d).\n\n10\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\nalso facilitate subsection (d)(2). The hanging paragraph at the end of\nsubsection (d)(1) explains that the two-year bar starts at the time that the\nperson\xe2\x80\x99s service \xe2\x80\x9cin that position\xe2\x80\x9d ends\xe2\x80\x94not at the conclusion of the\nperson\xe2\x80\x99s government service, unless the two coincide. 9 And the use of\nthe phrase \xe2\x80\x9cin a position\xe2\x80\x9d permits subsection (d)(2) to use a shorthand\nreference to \xe2\x80\x9ca position described in subparagraph (A), (B), or (C) of\nparagraph (1)\xe2\x80\x9d to bring in all of the various parts of (d)(1).\nThe revision history of section 207(d) likewise fails to suggest that \xe2\x80\x9cat\na rate of pay\xe2\x80\x9d should be read to modify \xe2\x80\x9cin a position\xe2\x80\x9d rather than \xe2\x80\x9cemployed.\xe2\x80\x9d As first adopted in the Ethics Reform Act of 1989, section\n207(d)(1)(B) encompassed any person \xe2\x80\x9cemployed in a position paid at\na rate of pay payable for level I of the Executive Schedule.\xe2\x80\x9d Pub. L. No.\n101-194, \xc2\xa7 101, 103 Stat. 1716, 1718. A year later, in an act making\ntechnical amendments to the Ethics Reform Act of 1989, Congress struck\nout the word \xe2\x80\x9cpaid\xe2\x80\x9d and replaced it with \xe2\x80\x9cin the executive branch of the\nUnited States (including any independent agency),\xe2\x80\x9d which is how it appears today. See Pub. L. No. 101-280, \xc2\xa7 2(a)(6)(A), 104 Stat. 149, 150\n(1990). OGE argues that \xe2\x80\x9c[t]he original focus of the statute appears to\n\n9 See 5 C.F.R. \xc2\xa7 2641.205(c). We recognize that the application of section 207(d)(1)(B)\nto employees who happen to receive level I pay at a point in time, but whose pay may\nbe set within a range that exceeds level I, can lead to an odd result if the employee\nreceives a pay increase that puts him over the level I amount. At that point, the employee\nwould cease being a \xe2\x80\x9cvery senior\xe2\x80\x9d employee (or, put differently, would have left his \xe2\x80\x9cvery\nsenior\xe2\x80\x9d position), and the two-year bar would begin even while the employee remained\nin the government with the same title. While this situation (if it arose) would be anomalous, it is not in our view so absurd or unworkable as to require abandoning the straightforward reading of section 207(d)(1)(B) discussed above. OGE regulations interpreting\nsection 207(c) and 207(d) recognize that the statute allows for the possibility of former\n\xe2\x80\x9csenior\xe2\x80\x9d or \xe2\x80\x9cvery senior\xe2\x80\x9d employees serving out their respective one- or two-year bars\nwhile still employed by the government. See 5 C.F.R. \xc2\xa7\xc2\xa7 2641.104, 2641.204(d) & ex. 1,\n2641.205(c). The statute exempts communications or appearances made on behalf of the\nUnited States, see 18 U.S.C. \xc2\xa7 207(c)(1), (d)(1), so those employees would not violate the\nstatute by acting within the scope of their employment. And other prohibitions in section\n207 would still apply to those employees once they leave the government, even if the bars\nimposed by 207(c) or 207(d) had run. It is true that, in the example we have hypothesized,\nthe former \xe2\x80\x9cvery senior\xe2\x80\x9d employee could remain in the very same position and have the\nsame job description, title, and stature as at the time that he happened to receive a level I\nsalary. However, given the clear wording of section 207(d)(1)(B), it seems that this is\nsimply an anomalous result that comes about because of the statute\xe2\x80\x99s reliance on salaries\nset exactly at level I.\n\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nhave been . . . on the pay of the employee,\xe2\x80\x9d and maintains that \xe2\x80\x9cCongress\xe2\x80\x99s decision to amend the law suggests an attempt to shift the focus\nto the pay of the employee\xe2\x80\x99s position.\xe2\x80\x9d OGE Views at 4\xe2\x80\x935. Given that\nboth versions of the statute refer to a \xe2\x80\x9cposition,\xe2\x80\x9d we do not believe that\nthe change in language reflects the change in focus OGE suggests. In\nany event, the scant legislative history of the 1990 technical amendments\nindicates that this change was meant simply to clarify the application\nof 207(d) to independent agencies. See 136 Cong. Rec. H1646 (daily\ned. Apr. 24, 1990) (detailed explanation of bill prepared by House and\nSenate legislative counsel) (\xe2\x80\x9cThe amendment clarifies coverage of independent agency employees under the post-employment restrictions of section 207[.]\xe2\x80\x9d); id. at H1645\xe2\x80\x9346 (statement of Rep. Fazio) (\xe2\x80\x9cThe technical\namendments also clarify coverage of Government officers and employees\nunder the post-employment restrictions and make other technical and\nconforming amendments to the conflict-of-interest laws in title 18 of the\nUnited States Code.\xe2\x80\x9d).\nWe therefore do not believe it is viable to read the statutory phrase \xe2\x80\x9cat a\nrate of pay payable for level I\xe2\x80\x9d to modify \xe2\x80\x9cposition\xe2\x80\x9d rather than \xe2\x80\x9cemployed,\xe2\x80\x9d nor do we agree that, even under such a reading, section\n207(d)(1)(B) would apply only to positions with salaries fixed at level I\nby law.\nWe have also considered whether our construction of the statute, under\nwhich the provision covers Executive Branch employees \xe2\x80\x9cemployed . . . at\na rate of pay payable\xe2\x80\x9d for level I, might nonetheless carry the agencies\xe2\x80\x99\npreferred meaning\xe2\x80\x94that is, whether the provision could be read to require\nthat the person be \xe2\x80\x9cemployed [by statutory direction] . . . at\xe2\x80\x9d the level I\nrate. Under that reading, if a person were employed pursuant to a statute\nthat prescribes a pay range, he would not be \xe2\x80\x9cemployed [by statutory\ndirection]\xe2\x80\x9d at a rate of pay payable for level I. It would follow that the\nrelevant portion of section (d)(1)(B) would apply only to Executive\nBranch employees for whom a statute sets the pay exactly at level I. This\nargument would read into the provision a qualification that lacks a clear\ntextual basis, but because the statutory language, read literally, can lead to\nanomalous and even puzzling results, see supra note 9; infra pp. 14\xe2\x80\x9315,\nwe sought to consider every plausible argument that would avoid such\noutcomes.\nWe believe, however, that this alternate reading cannot be sustained,\neither. Even if we were prepared to read an extra-textual \xe2\x80\x9cby statutory\n12\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\ndirection\xe2\x80\x9d qualification into section 207(d)(1)(B), we would presumably\nhave to do so in section 207(c) as well. Subsection (c)(2)(A)(ii) covers\nany person \xe2\x80\x9cemployed in a position . . . for which that person is paid at a\nrate of basic pay which is equal to or greater than 86.5 percent of the rate\nof basic pay for level II of the Executive Schedule\xe2\x80\x9d along with (for a\ntime) any person who \xe2\x80\x9cwas employed in a position . . . for which the rate\nof basic pay . . . was equal to or greater than the rate of basic pay payable\nfor level 5 of the Senior Executive Service on the day prior to the enactment of [the National Defense Authorization Act for Fiscal Year 2004\n(\xe2\x80\x9c2004 NDAA\xe2\x80\x9d)].\xe2\x80\x9d That part of 207(c) is understood to cover, among\nothers, members of the Senior Executive Service (\xe2\x80\x9cSES\xe2\x80\x9d) who meet the\npay thresholds. But the SES pay statute does not set SES members\xe2\x80\x99 pay at\nspecific amounts on a position-by-position basis; instead, it prescribes a\npay range. See 5 U.S.C. \xc2\xa7 5382 (2012); see also 5 U.S.C. \xc2\xa7 5382 (2000).\nTherefore, if we thought that sections 207(c) and 207(d) implicitly covered only employees for whom a statute requires pay at a discrete, specified amount\xe2\x80\x94for instance, if we read section 207(c)(2)(A)(ii) to apply\nonly to persons \xe2\x80\x9cpaid [by statutory direction] at a rate of basic pay which\nis equal to or greater than 86.5 percent of the rate\xe2\x80\x9d for level II\xe2\x80\x94then that\nprovision would no longer cover SES employees. That result would\nbe contrary to the settled understanding of section 207(c)(2)(A)(ii)\xe2\x80\x99s\napplication, both before and after the 2004 NDAA amendment to that\nprovision. 10 See, e.g., Office of Government Ethics, One-Year Ban in 18\nU.S.C. \xc2\xa7 207(c), Informal Advisory Letter 93x10 (Apr. 21, 1993) (subsection (c)(2)(A)(ii), as then written, \xe2\x80\x9cidentifies a class of individuals also\nsubject to the restrictions of section 207(c) who hold positions other than\nthose specified in the Executive Schedule, such as certain SES employees\xe2\x80\x9d); Office of Government Ethics, Component Designations, Informal\nAdvisory Letter 07x10 (July 31, 2007) (\xe2\x80\x9c[S]ection 207(c)(2)(A)(ii) . . .\ngenerally governs whether an individual paid under the SES system is\ncovered by section 207(c).\xe2\x80\x9d); H.R. Rep. No. 108-354, at 762 (Nov. 7,\n2003) (conference report for 2004 NDAA) (describing the amended\n207(c)(2)(A)(ii) as containing \xe2\x80\x9cpost employment restrictions\xe2\x80\x9d relevant to\nthe SES); cf. 5 C.F.R. \xc2\xa7 2641.104, ex. 2 to the definition of senior em-\n\n10\n\nSee Pub. L. No. 108-136, tit. XI, \xc2\xa7 1125(b)(1), 117 Stat. 1392, 1639 (2003).\n\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nployee (stating that subsection (c)(2)(A)(ii) applies to individuals paid\nunder 5 U.S.C. \xc2\xa7 5376, which also prescribes a pay range). 11\nThe agencies also support their narrower reading of section 207(d)(1)(B)\nby relying on the statutory purpose. HHS points out that salary alone\nis not a very exact proxy for an employee\xe2\x80\x99s level of authority or ability\nto exercise influence after leaving a position. To illustrate, HHS explains\nthat the pay of individual SBRS members, who are \xe2\x80\x9cemployed in the\nconduct of biomedical research, not policy-making,\xe2\x80\x9d is set \xe2\x80\x9cwithout\nregard to an individual\xe2\x80\x99s relative seniority or ability to influence policy,\xe2\x80\x9d\nbut instead \xe2\x80\x9cbased on consideration of the individual\xe2\x80\x99s specific skills,\nimpact and recognition in the scientific community, and the private sector\nsalaries commanded by individuals with similar skills.\xe2\x80\x9d HHS Opinion\nRequest at 2. Similarly, the VA states that, under our interpretation,\na significant number of VA certified registered nurse anesthetists\n(\xe2\x80\x9cCRNAs\xe2\x80\x9d), whose basic pay is capped by regulation at level I and who\ncurrently receive that amount, would be considered \xe2\x80\x9cvery senior.\xe2\x80\x9d VA\nViews at 2\xe2\x80\x933. The VA argues against an interpretation of section 207(d)\nunder which a CRNA, who \xe2\x80\x9cprovides health-care services in a local VA\nMedical Center,\xe2\x80\x9d is subject to the same post-employment restrictions as\nthe Secretary of Veterans Affairs, when those stringent restrictions \xe2\x80\x9cdo\nnot apply to the Deputy Secretary, Under and Assistant Secretaries, and\nother high-level employees whose duties actually involve policy making\nand whose Department-wide connections could be used during postemployment in ways that raise an appearance of impropriety.\xe2\x80\x9d Id. at 3.\nRather than relying on the dollar amount of an employee\xe2\x80\x99s pay to determine whether he is \xe2\x80\x9cvery senior,\xe2\x80\x9d the agencies suggest that we should use\nthe authority establishing the position as a signaling device: if the pay\nfor the position is legally required to be set at level I, that requirement\nlikely \xe2\x80\x9creflect[s] a deliberate decision that the person occupying the\nposition has a commensurate level of responsibility and influence as a\nperson specified in level I of the Executive Schedule.\xe2\x80\x9d OGE Views at 5.\n11 To get around this problem with section 207(c)(2)(A)(ii) and SES members, an advocate of this hypothetical reading could argue that section 207 means \xe2\x80\x9cemployed [by\nstatutory direction]\xe2\x80\x9d when it uses the word \xe2\x80\x9cemployed,\xe2\x80\x9d but does not mean \xe2\x80\x9cpaid [by\nstatutory direction]\xe2\x80\x9d when it uses the word \xe2\x80\x9cpaid.\xe2\x80\x9d But that distinction seems contrived.\nBoth \xe2\x80\x9cemployed\xe2\x80\x9d and \xe2\x80\x9cpaid\xe2\x80\x9d refer to an action that could be said to have been directed by\nstatute, and we do not see why one word would carry that implicit qualifier and not the\nother.\n\n14\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\nWe recognize that our interpretation can lead to counterintuitive outcomes. We justified the result in our Treasury Employees opinion\xe2\x80\x94i.e.,\nthe conclusion that employees who receive pay exceeding level I are not\nsubject to 207(d)\xe2\x80\x94by explaining that the IRS and OTS employees in\nquestion, despite their high salaries, were not the equivalent of agency\nheads and did not occupy the kinds of positions that \xe2\x80\x9ccreate the potential\nto exercise unusual continuing influence\xe2\x80\x9d over other level I officials once\nthey left the government. Treasury Employees, 24 Op. O.L.C. at 286\xe2\x80\x9387\n(internal quotation marks and citation omitted). In offering that justification, we implicitly acknowledged that salary alone is an imperfect proxy\nfor an employee\xe2\x80\x99s authority or stature within his agency or the federal\ngovernment as a whole.\nBut salary is the proxy that Congress chose in section 207(d)(1)(B).\nAnd even if use of that proxy can lead to \xe2\x80\x9ctruly anomalous\xe2\x80\x9d results,\nthose results \xe2\x80\x9cfollow[] from the precise language chosen by Congress.\xe2\x80\x9d\nId. at 287. Congress could have limited section 207(d)(1)(B)\xe2\x80\x99s application\nto only those employees listed in 5 U.S.C. \xc2\xa7 5312, or only those who\nare \xe2\x80\x9cemployed at a rate of pay specified in or fixed according to\xe2\x80\x9d that\nprovision\xe2\x80\x94both formulations that appear elsewhere in section 207, see\n18 U.S.C. \xc2\xa7 207(d)(2)(B), (c)(2)(A)(i)\xe2\x80\x94or else those who meet a more\nqualitative definition based on seniority or decision-making authority. 12\nInstead, Congress defined the class of employees solely according to a\nsalary amount, sweeping in anyone who is \xe2\x80\x9cemployed\xe2\x80\x9d \xe2\x80\x9cat a rate of pay\npayable for level I,\xe2\x80\x9d whether or not that high salary reflects the employee\xe2\x80\x99s hierarchical status or other considerations. We continue to believe\nthat the best interpretation of section 207(d)(1)(B) is one that gives effect\nto that choice of phrasing. And the premise on which the agencies\xe2\x80\x99 arguments about purpose are based\xe2\x80\x94that by requiring a position\xe2\x80\x99s pay to be\nset at level I a statute reflects a \xe2\x80\x9cdeliberate decision\xe2\x80\x9d that the employee is\nvery senior, whereas merely allowing the pay to be set at level I does not\nreflect such a determination\xe2\x80\x94is not in our view obviously correct. In\nany event, the premise finds no support in the text or legislative history\n\n12\n\nCongress took that approach in the predecessor to section 207(c)(2), which extended\nthe then-applicable prohibition in 207(c) to, among others, \xe2\x80\x9ca person employed . . . in a\nposition which involves significant decision-making or supervisory responsibility, as\ndesignated under this subparagraph by the Director of the Office of Government Ethics, in\nconsultation with the department or agency concerned.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 207(d)(1)(C) (1982).\n\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nof the statute. Accordingly, it cannot in our view justify a departure from\nthe statute\xe2\x80\x99s plain language.\nWe also continue to believe that the anomalous results potentially generated by the most straightforward reading of section 207(d) can be readily avoided. If a statute authorizes the pay for a particular position to fall\nwithin a range encompassing level I, and if the employing agency believes\nthat the position does not carry the kind of responsibility, authority, or\ninfluence that necessitates the stringent post-employment restrictions\nof section 207(d), the agency can exercise its discretion to set the employee\xe2\x80\x99s rate of pay at an amount other than level I. Cf. Applicability\nof the Post-Employment Restrictions of 18 U.S.C. \xc2\xa7 207(c) to Assignees\nUnder the Intergovernmental Personnel Act, 24 Op. O.L.C. 94, 98 (2000)\n(\xe2\x80\x9cIntergovernmental Personnel Act\xe2\x80\x9d). If, for example, HHS believes that\nSBRS members do not occupy positions with significant policy-making\nauthority and there is not likely to be an appearance of impropriety if they\ncommunicate with former HHS employees or other agency heads on\nbehalf of outside parties during the two years after their tenure ends, HHS\ncan elect to set the SBRS members\xe2\x80\x99 salaries below the level I amount (or\nabove). \xe2\x80\x9c[I]n view of the present opinion,\xe2\x80\x9d however, \xe2\x80\x9cany future decision\nto set a salary exactly at the rate for level I will presumably reflect at least\nan administrative determination that the more stringent post-employment\nrestrictions should apply.\xe2\x80\x9d Treasury Employees, 24 Op. O.L.C. at 287.\nCongress thus left this choice to the agencies that it enabled to set pay at\nthe same rate as level I or at a lesser or greater rate.\nAccordingly, in view of our Treasury Employees opinion and the present opinion, agencies (and in particular their ethics officials) should be\non notice regarding the ramifications of a decision to set an employee\xe2\x80\x99s\nrate of pay exactly at level I. Furthermore, in light of the conclusion we\nreach in Part III of this opinion, an agency or employee need only compare the employee\xe2\x80\x99s basic rate of pay to the rate of pay for level I to\ndetermine whether he will be subject to the two-year bar. Indeed, OGE\nsuggests that this class of employees \xe2\x80\x9cwould be relatively identifiable,\xe2\x80\x9d\nallowing agencies to \xe2\x80\x9cproactively take steps to mitigate overbreadth issues\nthrough training and guidance.\xe2\x80\x9d OGE Views at 7.\nWe therefore adhere to the view, expressed in our earlier opinion, that\nsection 207(d)(1)(B) encompasses any Executive Branch employee whose\n\xe2\x80\x9crate of pay\xe2\x80\x9d equals the level I amount, whether that rate is set by law or\nadministrative action.\n16\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\nIII.\nWhile the Treasury Employees opinion did not address what constitutes\nan employee\xe2\x80\x99s \xe2\x80\x9crate of pay\xe2\x80\x9d for purposes of section 207(d)(1)(B)\xe2\x80\x99s comparison, the opinion did observe that \xe2\x80\x9c[i]f the salary of the Treasury\nemployees in question had been set exactly at the rate for level I, subsection (d) by its terms would seem to apply.\xe2\x80\x9d Treasury Employees, 24 Op.\nO.L.C. at 287 (first emphasis added). We similarly explained that \xe2\x80\x9cany\nfuture decision to set a salary exactly at the rate for level I will presumably reflect at least an administrative determination that the more stringent\npost-employment restrictions should apply.\xe2\x80\x9d Id. (emphasis added). Our\nanalysis thus appears to have assumed that \xe2\x80\x9crate of pay\xe2\x80\x9d refers solely to\nthe employee\xe2\x80\x99s annual salary. See id. at 285 (\xe2\x80\x9cWe understand that there\nare some Treasury employees . . . whose salaries exceed the rate of pay\nfor level I.\xe2\x80\x9d); id. at 286 (\xe2\x80\x9cSection 207 uses a former official\xe2\x80\x99s salary as a\nproxy for ability to exercise influence, so that higher salaries in general\nlead to greater post-employment restrictions.\xe2\x80\x9d); Webster\xe2\x80\x99s Third New\nInternational Dictionary 2003 (2002) (defining \xe2\x80\x9csalary\xe2\x80\x9d as \xe2\x80\x9cfixed compensation paid regularly (as by the year, quarter, month, or week) for\nservices\xe2\x80\x9d). 13\nNow that the question has been squarely posed to us, we affirm that\nimplicit understanding: the phrase \xe2\x80\x9crate of pay\xe2\x80\x9d in 207(d)(1)(B) refers\nsolely to an employee\xe2\x80\x99s basic rate of pay (i.e., base salary), and does not\ninclude any forms of additional pay. 14 Three considerations lead to this\nview.\n\n13\n\nSee supra note 4.\nHHS did not specifically ask us to determine whether \xe2\x80\x9crate of pay\xe2\x80\x9d in section\n207(d)(1)(B) includes locality-based comparability payments, as the HHS employees in\nquestion do not receive such payments. See HHS Opinion Request at 2. Similarly, Treasury and the VA did not specifically mention whether they have any employees whose total\npay might equal or exceed the level I amount because of their receiving locality pay\n(though the VA noted that locality considerations are taken into account in setting the\nbasic rate of pay for VA CRNAs, see VA Views at 3). Although we do not know whether\nsuch employees exist, it follows from our conclusion here\xe2\x80\x94that a \xe2\x80\x9crate of pay\xe2\x80\x9d refers to a\nrate of basic pay\xe2\x80\x94that locality-based comparability payments, to the extent they constitute a form of compensation separate and apart from the employee\xe2\x80\x99s basic pay, would\nbe excluded. Cf. 5 U.S.C. \xc2\xa7 5304(c)(2)(A); Calculating Rate of Pay of Department of\nJustice Employees for Purposes of \xe2\x80\x9cCovered Persons\xe2\x80\x9d Determination Under Independent\nCounsel Act, 21 Op. O.L.C. 68 (1997) (\xe2\x80\x9cIndependent Counsel Act\xe2\x80\x9d).\n14\n\n17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nFirst, if \xe2\x80\x9crate of pay\xe2\x80\x9d refers only to the employee\xe2\x80\x99s rate of basic pay,\nsection 207(d)(1)(B) calls for an apples-to-apples comparison. The provision asks whether the \xe2\x80\x9crate of pay\xe2\x80\x9d of the Executive Branch employee is\nequal to the \xe2\x80\x9crate of pay payable for level I of the Executive Schedule.\xe2\x80\x9d\nThe \xe2\x80\x9crate of pay . . . for level I of the Executive Schedule\xe2\x80\x9d is a rate of\nbasic pay; the Executive Schedule sets forth base annual salaries for each\nof its five levels. See 5 U.S.C. \xc2\xa7 5311 (defining the Executive Schedule\nas \xe2\x80\x9cthe basic pay schedule\xe2\x80\x9d for the positions to which it applies); accord\nid. \xc2\xa7\xc2\xa7 5312\xe2\x80\x935316. It would therefore make sense that the figure section\n207(d)(1)(B) is comparing against the rate for level I\xe2\x80\x94the employee\xe2\x80\x99s\n\xe2\x80\x9crate of pay\xe2\x80\x9d\xe2\x80\x94would also be a base-salary figure.\nSecond, that interpretation adheres to the natural reading of the phrase\n\xe2\x80\x9cemployed at . . . a rate of pay.\xe2\x80\x9d Although the meaning of the term \xe2\x80\x9crate\xe2\x80\x9d\ncan vary depending on context, it often denotes a set amount fixed according to some standard. See Webster\xe2\x80\x99s Third New International Dictionary\n1884 (2002) (defining \xe2\x80\x9crate\xe2\x80\x9d as \xe2\x80\x9ca charge, payment, or price fixed according to a ratio, scale, or standard\xe2\x80\x9d); 13 Oxford English Dictionary 208\xe2\x80\x9309\n(2d ed. 1989) (defining \xe2\x80\x9crate\xe2\x80\x9d as \xe2\x80\x9c[t]he amount of a charge or payment\n(such as interest, discount, wages, etc.) having relation to some other\namount or basis of calculation\xe2\x80\x9d and \xe2\x80\x9c[a] fixed charge applicable to each\nindividual case or instance; esp. the (or an) amount paid or demanded for\na certain quantity of a commodity, material, work, etc.\xe2\x80\x9d); Black\xe2\x80\x99s Law\nDictionary 1375 (9th ed. 2009) (defining \xe2\x80\x9crate\xe2\x80\x9d as \xe2\x80\x9c[p]roportional or\nrelative value\xe2\x80\x9d and \xe2\x80\x9c[a]n amount paid or charged for a good or service\xe2\x80\x9d).\nThe word does not readily encompass one-off payments made at irregular\nintervals such as bonuses and awards. Moreover, section 207(d) refers to\nthe \xe2\x80\x9crate\xe2\x80\x9d that the employee is \xe2\x80\x9cemployed . . . at,\xe2\x80\x9d and that phrase suggests the compensation for the employee\xe2\x80\x99s continuing and regular services\nand not any additional forms of compensation the employee may receive\nfrom time to time. 15\n15\n\nLocality-based comparability payments, although they supplement an employee\xe2\x80\x99s\nbasic rate of pay, are distributed concurrent with the employee\xe2\x80\x99s basic pay and thus\ncomprise a portion of an employee\xe2\x80\x99s regular paycheck. See 5 U.S.C. \xc2\xa7 5304(c)(2)(B).\nThus, locality payments could reasonably be understood to be part of the \xe2\x80\x9crate\xe2\x80\x9d the\nemployee is employed at under the dictionary definitions set forth above. As discussed\njust below and in our Independent Counsel Act opinion, however, there is good reason to\nconclude that Congress did not intend an employee\xe2\x80\x99s coverage to depend on the geographic location where he happens to serve.\n\n18\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\nThird, the language in this instance readily lends itself to an interpretation that accommodates the statutory purposes. As discussed above,\nsection 207 generally uses pay as a proxy for the importance of the employee\xe2\x80\x99s duties and hierarchical position and thus as a measure of postemployment influence. See Intergovernmental Personnel Act, 24 Op.\nO.L.C. at 96\xe2\x80\x9397. Given the statute\xe2\x80\x99s use of that proxy, it seems unlikely\nthat Congress intended for an employee\xe2\x80\x99s receipt of discrete payments, or\nsupplemental payments that turn solely on a factor like the employee\xe2\x80\x99s\ngeographic location, to determine whether the employee would be subject\nto 207(d). If an agency awarded a bonus because of circumstances unique\nto the employee\xe2\x80\x99s performance in a particular year, the award would not\nbe closely tied to the nature of the position itself or the employee\xe2\x80\x99s continuing status in the agency. Similarly, allowances (such as a relocation\nallowance) are not necessarily based on a position\xe2\x80\x99s or an employee\xe2\x80\x99s\nduties but rather on practical considerations of attracting or retaining\npersonnel.\nOur Office came to a similar conclusion regarding the phrase \xe2\x80\x9crate\nof pay\xe2\x80\x9d in an opinion about the class of \xe2\x80\x9ccovered persons\xe2\x80\x9d subject to\ninvestigation by an Independent Counsel. See Calculating Rate of Pay of\nDepartment of Justice Employees for Purposes of \xe2\x80\x9cCovered Persons\xe2\x80\x9d\nDetermination Under Independent Counsel Act, 21 Op. O.L.C. 68 (1997)\n(\xe2\x80\x9cIndependent Counsel Act\xe2\x80\x9d). The covered class included, among others,\n\xe2\x80\x9cany individual working in the Department of Justice who is compensated\nat a rate of pay at or above level III of the Executive Schedule.\xe2\x80\x9d 28 U.S.C.\n\xc2\xa7 591(b)(4). We found that the statute\xe2\x80\x99s reference to \xe2\x80\x9crate of pay\xe2\x80\x9d did\nnot include locality-based comparability payments under 5 U.S.C. \xc2\xa7 5304.\nWe explained that, because locality pay is aimed simply at achieving pay\nparity between federal employees and their non-federal counterparts on\na locality-by-locality basis, it would make little sense to interpret the\nIndependent Counsel Act so that its application might depend on whether\nthe employee receives such pay: \xe2\x80\x9cPersons otherwise not covered by the\nAct would become \xe2\x80\x98covered persons\xe2\x80\x99 as a result of the location where\nthey work, rather than the position they occupy. Such a result would not\nonly fail to serve the purposes of the Act, but would actually be contrary\nto them as well.\xe2\x80\x9d Independent Counsel Act, 21 Op. O.L.C. at 69. We find\n\n19\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nthat logic persuasive again here, with respect not only to locality pay but\nto other forms of additional pay. 16\nTo be sure, an employee\xe2\x80\x99s basic rate of pay\xe2\x80\x94especially when an agency has discretion to set the rate for an employee\xe2\x80\x99s position within a flexible range\xe2\x80\x94may, to some extent, reflect circumstances tailored to the\nemployee rather than to the position more generally, and those individual\nfactors might not correspond to the likely extent of the employee\xe2\x80\x99s influence after leaving the government. As noted above, we understand that\nthe rate of pay for SBRS members is set on an individual basis and in\nconsideration of the researcher\xe2\x80\x99s specific skills, standing in the scientific\ncommunity, and salaries that similar individuals receive in the private\nsector. HHS Opinion Request at 2. Likewise, the VA represents that the\npay for VA CRNAs is determined in a way that renders it \xe2\x80\x9cimpossible\xe2\x80\x9d to\nextract a locality component from the basic rate of pay, because that rate\nis determined by salary surveys conducted by each VA medical center that\ntake into account local market conditions for registered nurses. VA Views\nat 3. These factors reinforce the point, acknowledged above, that the use\nof the employee\xe2\x80\x99s base salary as a measure of his stature or influence\nis \xe2\x80\x9cnecessarily inexact.\xe2\x80\x9d Independent Counsel Act, 21 Op. O.L.C. at 71.\nNonetheless, and as we reasoned in the Independent Counsel Act opinion,\nthe inclusion of bonuses, allowances, and locality pay in the rate-of-pay\ncalculation \xe2\x80\x9cwould greatly magnify the imprecision\xe2\x80\x9d that is unavoidable\nwith the salary proxy. Id. We therefore believe that additional pay should\nbe disregarded unless the statute\xe2\x80\x99s text clearly indicates otherwise.\nThe strongest argument against this reading of \xe2\x80\x9crate of pay\xe2\x80\x9d arises from\na comparison of section 207(d)(1)(B) to two other subsections of section\n16\n\nOGE has concluded that General Schedule step increases (within-grade pay increases) and cost-of-living adjustments should be included in determining whether an\nemployee is subject to 18 U.S.C. \xc2\xa7 207(c). See Office of Government Ethics, Definition of\n\xe2\x80\x9cSenior Employee\xe2\x80\x9d and \xe2\x80\x9cVery Senior Employee\xe2\x80\x9d, Informal Advisory Letter 92x20 (July\n23, 1992). OGE reached that conclusion because those pay adjustments \xe2\x80\x9clead to a new\nrate of basic pay,\xe2\x80\x9d unlike \xe2\x80\x9cbonuses, awards, and various allowances,\xe2\x80\x9d which OGE found\nshould not factor into the section 207(c) determination. Id.; see also Office of Government Ethics, Senior Employees; Post-Government Employment Restrictions; Public\nFinancial Disclosure Requirement, Informal Advisory Letter 98x2, at 2 n.3 (Feb. 11,\n1998). OGE\xe2\x80\x99s position in this regard is consistent with our analysis regarding \xe2\x80\x9crate of\npay\xe2\x80\x9d in section 207(d)(1)(B), and we note that if a pay adjustment results in an increase or\ndecrease in the employee\xe2\x80\x99s rate of basic pay, so defined, the amount of the adjustment\nshould not be excluded for purposes of the \xe2\x80\x9cvery senior\xe2\x80\x9d determination.\n\n20\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\n207 that specifically refer to \xe2\x80\x9crate[s] of basic pay\xe2\x80\x9d or \xe2\x80\x9cbasic rate[s] of\npay.\xe2\x80\x9d That Congress included that qualifier in some instances but not\nothers would ordinarily counsel against reading the word \xe2\x80\x9cbasic\xe2\x80\x9d into\nsection 207(d)(1)(B). But because one of those subsections, through a\ncross-reference, also uses the unadorned phrase \xe2\x80\x9crate of pay\xe2\x80\x9d to refer to a\nbasic rate of pay, we believe that the statute\xe2\x80\x99s use of the word \xe2\x80\x9cbasic\xe2\x80\x9d in\nsome instances but not others is not itself determinative.\nThe first subsection is section 207(c), which defines the category of\n\xe2\x80\x9csenior\xe2\x80\x9d employees to include, among others, persons:\n(i) employed at a rate of pay specified in or fixed according to\nsubchapter II of chapter 53 of title 5,\n[and]\n(ii) employed in a position which is not referred to in clause (i)\nand for which that person is paid at a rate of basic pay which is\nequal to or greater than 86.5 percent of the rate of basic pay for level\nII of the Executive Schedule, or, for a period of 2 years following the\nenactment of the National Defense Authorization Act for Fiscal Year\n2004, a person who, on the day prior to the enactment of that Act,\nwas employed in a position which is not referred to in clause (i) and\nfor which the rate of basic pay, exclusive of any locality-based pay\nadjustment under section 5304 or section 5304a of title 5, was equal\nto or greater than the rate of basic pay payable for level 5 of the\nSenior Executive Service on the day prior to the enactment of that\nAct . . . .\n18 U.S.C. \xc2\xa7 207(c)(2)(A) (emphases added). The second is section 207(e),\nthe provision applicable to former members of Congress and employees\nof the legislative branch. Section 207(e)(7) qualifies the category of\nemployees subject to that subsection\xe2\x80\x99s post-employment restrictions:\n(A) The restrictions contained in paragraphs (2), (3), (4), and (5)\n[of section 207(e)] apply only to acts by a former employee who . . .\nwas paid a rate of basic pay equal to or greater than an amount\nwhich is 75 percent of the basic rate of pay payable for a Member of\nthe House of Congress in which such employee was employed.\n(B) The restrictions contained in paragraph (6) [of section 207(e)]\napply only to acts by a former employee who . . . was employed in a\nposition for which the rate of basic pay, exclusive of any locality21\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nbased pay adjustment under section 5302 of title 5,[ 17] is equal to or\ngreater than the basic rate of pay payable for level IV of the Executive Schedule.\nId. \xc2\xa7 207(e)(7) (emphases added).\nSection 207(c)(2)(A)(ii) and section 207(e)(7)(A) and (B) thus refer\nseveral times to a \xe2\x80\x9crate of basic pay\xe2\x80\x9d or a \xe2\x80\x9cbasic rate of pay.\xe2\x80\x9d \xe2\x80\x9cThat is\nsignificant because Congress generally acts intentionally when it uses\nparticular language in one section of a statute but omits it in another.\xe2\x80\x9d\nDep\xe2\x80\x99t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (citing\nRussello v. United States, 464 U.S. 16, 23 (1983)). We might therefore\ninfer that \xe2\x80\x9crate of pay\xe2\x80\x9d in section 207(d)(1)(B) must mean something\nother than \xe2\x80\x9crate of basic pay.\xe2\x80\x9d Furthermore, the distinct phrases appear\nin the same statutory section, and Congress created the key distinction\nbetween them\xe2\x80\x94the inclusion of the word \xe2\x80\x9cbasic\xe2\x80\x9d in 207(c) and 207(e)\nand the qualifier\xe2\x80\x99s omission in 207(d)\xe2\x80\x94in a single enactment, the Ethics\nReform Act of 1989, see Pub. L. No. 101-194, \xc2\xa7 101, 103 Stat. 1716,\n1716\xe2\x80\x9320. 18 And we have found such distinctions in section 207 significant\nin the past. Our Treasury Employees opinion placed weight on the \xe2\x80\x9cnotably different\xe2\x80\x9d phrases in section 207(c)(2)(A)(ii), which at the time\nincluded employees whose rates of basic pay were \xe2\x80\x9cequal to or greater\nthan the rate of basic pay payable for level 5 of the Senior Executive\nService,\xe2\x80\x9d and section 207(d)(1)(B), with its \xe2\x80\x9cat a rate of pay\xe2\x80\x9d phrasing.\nIn light of this difference, we reached the conclusion that the \xe2\x80\x9cat a rate of\npay\xe2\x80\x9d language applied only to officials with pay set exactly \xe2\x80\x9cat\xe2\x80\x9d level I.\n24 Op. O.L.C. at 286. The difference in language, we said, reinforced the\n\xe2\x80\x9cunambiguous\xe2\x80\x9d phrase \xe2\x80\x9cat a rate of pay.\xe2\x80\x9d\nHere, however, subsection (c) itself uses the relevant phrases\xe2\x80\x94\xe2\x80\x9crate of\npay\xe2\x80\x9d and \xe2\x80\x9crate of basic pay\xe2\x80\x9d\xe2\x80\x94to refer to the same thing. Accordingly, we\ndo not think the distinction in phrasing indicates that the \xe2\x80\x9crate of pay\xe2\x80\x9d in\nsubsection (d)(1)(B) means something different from \xe2\x80\x9crate of basic pay.\xe2\x80\x9d\nCf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation\nof Legal Texts 170\xe2\x80\x9371 (2012) (noting that the presumption of consistent\n17 This appears to be an incorrect reference. Section 5304 of title 5 provides for locality-based comparability payments, not section 5302. See 18 U.S.C. \xc2\xa7 207(c)(2)(A)(ii).\n18 We found no illuminating legislative history on the issue. As the Treasury Employees opinion noted, the history relating to section 207(d) is sparse. 24 Op. O.L.C. at 286\nn.1.\n\n22\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\nusage, \xe2\x80\x9cmore than most other canons, . . . assumes a perfection of drafting\nthat, as an empirical matter, is not often achieved,\xe2\x80\x9d and is \xe2\x80\x9cparticularly\ndefeasible by context\xe2\x80\x9d); City of Columbus v. Ours Garage & Wrecker\nServ., Inc., 536 U.S. 424, 435\xe2\x80\x9336 (2002) (disregarding the Russello presumption when context indicated otherwise). Section 207(c)(2)(A)(i) uses\n\xe2\x80\x9crate of pay\xe2\x80\x9d to refer to rates \xe2\x80\x9cspecified in\xe2\x80\x9d the Executive Schedule. The\nExecutive Schedule is defined by statute as \xe2\x80\x9cthe basic pay schedule for\npositions\xe2\x80\x9d to which it applies. 5 U.S.C. \xc2\xa7 5311 (emphasis added). 19 It\nfollows that \xe2\x80\x9ca rate of pay specified in . . . subchapter II of chapter 53 of\ntitle 5\xe2\x80\x9d necessarily refers to a basic rate of pay, even though the word\n\xe2\x80\x9cbasic\xe2\x80\x9d is omitted. Because section 207 thus uses the two different\nphrases to mean the same thing in the same subsection, we think it is\nlikewise reasonable to understand the two phrases to mean the same thing\nin different subsections\xe2\x80\x94particularly where, as discussed earlier, there are\ncompelling reasons to read \xe2\x80\x9crate of pay\xe2\x80\x9d in 207(d)(1)(B) to mean rate of\nbasic pay. See supra pp. 17\xe2\x80\x9320. Sections 207(d)(1)(B) and 207(c)(2)(A)(i),\nmoreover, are not out of the ordinary: many other statutes use \xe2\x80\x9crate of\npay\xe2\x80\x9d or \xe2\x80\x9crate payable\xe2\x80\x9d to describe the rates of basic pay under the Executive Schedule. See, e.g., 2 U.S.C. \xc2\xa7 356(D); 5 U.S.C. \xc2\xa7 5318; 7 U.S.C.\n\xc2\xa7 7657(d)(2)(B); 22 U.S.C. \xc2\xa7 3961(a); 50 U.S.C. \xc2\xa7 3024(s)(3), (4); id.\n\xc2\xa7 3610(c). 20\nNor do we find it probative that, at times when section 207(c) and section 207(e) refer to \xe2\x80\x9cthe rate of basic pay,\xe2\x80\x9d the provisions state that such\na rate is \xe2\x80\x9cexclusive of any locality-based pay adjustment\xe2\x80\x9d afforded by\nstatute. See 18 U.S.C. \xc2\xa7 207(c)(2)(A)(ii), (e)(7)(B). The statute\xe2\x80\x99s use of\nthat qualifying phrase in some instances, but not all, could give rise to the\ninference that \xe2\x80\x9crate of basic pay\xe2\x80\x9d should be read to include locality pay\nunless otherwise stated. Otherwise, the phrase \xe2\x80\x9cexclusive of any localitybased pay adjustment\xe2\x80\x9d would be superfluous. If that were the case, that\nreading of 207(c) and 207(e) could require the conclusion that \xe2\x80\x9crate of\npay\xe2\x80\x9d in section 207(d) also includes locality-based comparability pay19\n\nIn addition, the provisions designating positions at each Executive Schedule level\nstate that \xe2\x80\x9cthe annual rate of basic pay\xe2\x80\x9d for each position shall be the rate set for that\nlevel. See 5 U.S.C. \xc2\xa7\xc2\xa7 5312\xe2\x80\x935316.\n20 See also 5 U.S.C. \xc2\xa7 5302(8) (explaining that for the purpose of that subchapter, \xe2\x80\x9cthe\nterm \xe2\x80\x98rates of pay under the General Schedule\xe2\x80\x99 [and] \xe2\x80\x98rates of pay for the General Schedule\xe2\x80\x99\xe2\x80\x9d mean \xe2\x80\x9cthe rates of basic pay under the General Schedule as established by section\n5332, excluding pay under section 5304 and any other additional pay of any kind\xe2\x80\x9d).\n\n23\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nments whenever applicable (and possibly other forms of additional pay).\nIn our view, however, the initial inference that \xe2\x80\x9crate of basic pay\xe2\x80\x9d includes locality pay unless otherwise stated would not be warranted. Such\na reading comes into conflict with the general understanding that the\nphrase \xe2\x80\x9crate of basic pay\xe2\x80\x9d (or \xe2\x80\x9cbasic rate of pay\xe2\x80\x9d) is a \xe2\x80\x9cterm of art specifically meaning \xe2\x80\x98the rate of pay . . . before any deductions and exclusive of\nadditional pay of any other kind, such as locality-based comparability\npayments.\xe2\x80\x99\xe2\x80\x9d Independent Counsel Act, 21 Op. O.L.C. at 70 (quoting\n5 C.F.R. \xc2\xa7 534.401(b)(3) (1996)). That understanding derives from the\nstatute establishing locality-based comparability payments, which states\nthat such payments \xe2\x80\x9cshall be considered to be part of basic pay\xe2\x80\x9d for certain specified purposes and \xe2\x80\x9cfor such other purposes as may be expressly\nprovided for by law or as the Office of Personnel Management may by\nregulation prescribe.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 5304(c)(2)(A). In fact, OGE relied upon\n5 U.S.C. \xc2\xa7 5304(c)(2)(A) to find that an employee\xe2\x80\x99s \xe2\x80\x9crate of basic pay\xe2\x80\x9d\nfor purposes of section 207(c)(2)(A)(ii) does not include locality pay,\ndespite language specifically addressing locality pay elsewhere in that\nsubsection. See Office of Government Ethics, Elements of Basic Pay for\nPurposes of Senior Employee Determinations, Informal Advisory Letter\n07x15 (Dec. 13, 2007). We believe that the language in sections 207(c)\nand 207(e) making clear that the term \xe2\x80\x9crate of basic pay\xe2\x80\x9d is exclusive of\nlocality pay was merely intended to clarify what was already implicit in\nthe term itself. Cf. United States v. Atl. Research Corp., 551 U.S. 128, 137\n(2007) (\xe2\x80\x9c[O]ur hesitancy to construe statutes to render language superfluous does not require us to avoid surplusage at all costs. It is appropriate to\ntolerate a degree of surplusage . . . .\xe2\x80\x9d).\nWe therefore conclude that section 207(d)(1)(B) refers to the employee\xe2\x80\x99s rate of basic pay, exclusive of additional forms of payment such as\nbonuses, awards, allowances, and locality pay. 21\nIV.\nFor these reasons, we interpret the statutory phrase \xe2\x80\x9cany person who\n. . . is employed in a position in the executive branch of the United States\n. . . at a rate of pay payable for level I of the Executive Schedule\xe2\x80\x9d to en-\n\n21 We understand that this interpretation accords with OGE practice since the issuance\nof our Treasury Employees opinion in 2000. See OGE Views at 2, 6.\n\n24\n\n\x0cWho Qualifies as a \xe2\x80\x9cVery Senior\xe2\x80\x9d Employee Under 18 U.S.C. \xc2\xa7 207(d)(1)(B)\n\ncompass any Executive Branch employee who receives a rate of basic pay\nof exactly the level I amount. Should any SBRS member or other HHS\nemployee receive a base salary set at level I, that employee would be\nsubject to section 207(d)\xe2\x80\x99s post-employment restrictions, whether the\nemployee\xe2\x80\x99s pay is set at level I by law or administrative action, and\nwhether that employee also receives allowances, bonuses, or other additional pay putting his total pay above that level. Conversely, an employee\nwould not be subject to section 207(d) if his base salary were set below\nlevel I but his receipt of additional pay brought his total pay to the level I\nthreshold.\nDANIEL L. KOFFSKY\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n25\n\n\x0c'