Construction o f § 406 of the Federal Employees Pay
Comparability Act of 1990
Section 4 06 o f the Federal E m ployees Pay C om parability Act o f 1990 does not extend the authority to
m ake bon u s paym ents to em ployees at the N ew York Field D ivision o f the Federal Bureau o f In
vestigation pursuant to section 601 of the Intelligence A uthorization Act for fiscal years 1989 and
1990 b ey o n d the ex p iration date of the dem onstration project established by section 601.
August 23, 1993
M em orandum O p in io n fo r th e
A s s is t a n t D i r e c t o r , L e g a l C o u n s e l
F ederal B u r ea u of I n v e s t ig a t io n
This m em orandum responds to your request for our opinion whether § 406 of
the Federal Em ployees Pay Comparability Act of 1990 (“FEPCA”), 104 Stat.
1427, 1467,1 preserves extraordinary benefits payable under § 601 o f the Intelli
gence A uthorization Act, Fiscal Y ear 1989, Pub. L. No. 100-453, 102 Stat. 1904,
1911 (1988), as am ended by the Intelligence Authorization Act, Fiscal Year 1990,
Pub. L. No. 101-193, § 601, 103 Stat. 1701, 1710 (1989), even after expiration of
§ 601 ’s paym ent authority. We conclude that § 406 does not preserve the § 601
benefits beyond the expiration of the latter provision.
Section 601 establishes a demonstration project that attempts to improve re
cruitm ent and retention at the New Y ork Field Division (“NYFD”) of the Federal
Bureau of Investigation (“FBI”) by increasing pay. See H.R. Rep. No. 100-591(1),
at 11-12 (1988), reprinted in 1988 U .S.C.C.A.N. 2469, 2479-80. Pursuant to
§ 601, any FBI em ployee transferred to the NYFD receives a lump sum payment of
up to $20,000, conditioned upon the em ployee’s agreement to serve at least three
years in that office. § 601(a)(1). In addition, all employees in the NYFD receive
periodic bonus paym ents o f between 20 and 25% o f their basic pay for the period
covered by the bonus. § 601(a)(2). Section 601(b) provides that these benefits
will term inate after five years. We understand from you that the program will end
on Septem ber 30, 1993.
FEPCA institutes a system of pay adjustments for general schedule employees
throughout the Federal government, including locality pay to accommodate the
higher cost o f living in certain areas. Under FEPCA, special agents in the NYFD
currently receive a 16% increase over base pay to account for New Y ork’s higher
cost o f living. Sim ilarly, support staff who receive pay under the general schedule
1 FEPCA was enacted as § 529 of the Treasury, Postal Service and General Government Appropriations
Act, 1991, Pub L. No. 101-509, 104 Stat. 1389 (1990). All references to provisions o f FEPCA in this
memorandum will cite the internal section num bers and corresponding pages in the statutes at large.
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Construction o f § 406 o f the F E P C A ct o f 1990
receive an 8% increase. Support staff who receive pay under the federal wage
system do not receive any increase. See FEPCA §§ 101, 404, 104 Stat. at 1429-30,
1466; Exec. Order No. 12786, Schedule 9, reprinted in 5 U.S.C. § 5332 note
(Supp. Ill 1991).
Thus, § 601 and FEPCA each provide extra pay for NYFD employees (except
for wage employees who receive benefits under § 601 but not FEPCA). F E P C A ’s
§ 406, however, instructs the Office of Personnel Management (“O PM ”) to coordi
nate the two programs to ensure that their payments are not cumulated:
Notwithstanding [§601], as amended, the Office of Personnel
M anagement shall reduce the rate of periodic payments under such
section as the provisions o f this Act [FEPCA] are implemented:
Provided, That no such reduction results in a reduction of the total
pay for any employee o f the New York Field Division of the Fed
eral Bureau of Investigation. Notwithstanding [§ 601], the Office of
Personnel M anagement may make such periodic payments inappli
cable to employees newly appointed to, or transferred to, the New
York Field Division on or after January 1, 1992.
The main clause in the first sentence of § 406 clearly does not authorize a con
tinuation of § 601 pay beyond the life of the demonstration project. On the con
trary, it expressly directs OPM to reduce § 601 payments to NYFD employees as
FEPCA is implemented. The second sentence of § 406 also contemplates the cur
tailing of § 601; it instructs that employees hired after January 1, 1992, need not
receive any § 601 benefits.
Notwithstanding this general thrust o f § 406, it has been suggested that the pro
viso in the first sentence might be intended as independent authority to
“grandfather” current NYFD employees with continued extra pay at the § 601
level. The suggestion is that the proviso forbids any reduction in the total pay o f
NYFD employees as a result of a reduction in § 601 benefits. Since the term ina
tion of § 601 benefits will cause a decrease in the pay of NYFD em ployees
(because FEPC A ’s benefits are lower and also do not extend to wage employees),
it is urged that the proviso would prevent any reduction in pay by authorizing con
tinued pay at the § 601 level.
This suggestion misconstrues the purpose o f the proviso. As indicated above,
the main clause o f § 406 directs OPM to reduce § 601 payments in response to
FEPCA. That clause, however, does not specify by how much the payments are to
be reduced. It is the proviso that limits O PM ’s discretion in this regard. T he pro
viso precludes any reduction of § 601 benefits that “results in a reduction o f the
total pay for any employee of the [NYFD].” In effect, this means that OPM may
not reduce § 601 benefits by more than one dollar for every dollar introduced un
der FEPCA; if it did, an em ployee’s total pay would be reduced, in violation o f the
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Opinions o f th e Office o f L eg a l Counsel
proviso. Thus, for each reduction in § 601 paym ents implemented pursuant to the
main clause o f § 406, the proviso caps the reduction at the amount of FEPCA dol
lars that the em ployee receives, which prevents any net loss of pay.
It m ust be understood that the proviso’s protection applies only with respect to
O PM ’s reduction o f § 601 benefits pursuant to § 406. This much is established by
the phrase, “no such reduction,” w hich unmistakably links the proviso’s operation
with the preceding clause. See also 2A Norman J. Singer, Sutherland Statutory
Construction §§ 47.08-.09 (5th ed. 1992) (in general, a proviso should be strictly
construed to relate to the enactment o f which it is part). In this case, the reduction
o f pay will occur as a result of the winding down o f § 601 ’s internal clock, and not
pursuant to § 406. Thus, the proviso will not be triggered. Accordingly, § 406
cannot be said to authorize continued extra pay at the § 601 rate.2
W ALTER DELLINGER
A cting A ssistant Attorney General
Office o f Legal Counsel
2 We can find no references in the legislative history of FEPCA (nor were any presented to us) to suggest
that § 406 was intended to continue § 601 benefits beyond their natural span.
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