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Administrative Assessment of Civil Penalties Against Federal Agencies Under the Clean Air Act

The Clean Air Act authorizes the Environmental Protection Agency administratively to assess civil penalties against federal agencies for violations of the Act or its implementing regulations.

Separation of powers concerns do not bar EPA’s exercise of this authority, because it can be exercised consistent with the Constitution.


Administrative Determination of Eligibility for Veterans’ Beneficiary Travel Reimbursement

The Veterans Administration (VA) has discretion to determine on a case-by-case basis whether VA beneficiaries should be reimbursed for transportation costs incurred in connection with their receipt of VA medical care, and is not required to do so in all cases.

The permissive statutory term “may,” used to describe the VA’s administrative authority to reimburse transportation costs, should be interpreted in light of its plain meaning unless the legislative history reveals that such an interpretation would lead to absurd results, or consequences obviously at variance with the policy of the statute as a whole. The legislative history of the Veterans’ Benefit Act of 1957 and its predecessor statutes is ambiguous with respect to Congress’ intent in using the word “may” in the 1957 Act, and is thus not sufficiently compelling to contradict the plain language of the statute.

Notwithstanding the VA’s consistent interpretation of the relevant provisions since 1957 to mandate travel reimbursement, legislative ratification of this administrative interpretation in subsequent amendments to the statute will not be found in the absence of clear and unambiguous congressional acceptance of the VA’s position.


Administratively Uncontrollable Overtime of Agent/Examiners in the FBI Laboratory

Under 5 U.S.C. § 5545(c)(2), premium pay on an annual basis is authorized for “Administratively Uncontrollable Overtime” where duties of position are of such a nature that they cannot be performed during normal business hours.

Whether work performed by agent-examiners in the Federal Bureau of Investigation Laboratory is by its nature such as to qualify them for premium pay under § 5545(c)(2) is a question of fact.


Admissibility of Alien Amnesty Application Information in Prosecutions of Third Parties

The confidentiality provisions of the Immigration Reform and Control Act of 1986 generally bar federal prosecutors from introducing information from a lien amnesty applications as evidence in criminal prosecutions of third parties, but the use of such information is not barred in prosecutions of third parties for crimes that facilitate, or are closely related to, the filing of a false amnesty application.

Justice Department use of amnesty application information is also subject to regulations issued by the Immigration and Naturalization Service. Those regulations limit such use against third parties to the prosecution of persons who have “created or supplied a false writing or document for use” in an amnesty application, which may include persons who take bribes to approve false amnesty applications.


Agency Rules as Constraints on the Exercise of an Agency’s Statutory Discretion

When an agency exercises discretion vested in it by statute by issuing a rule, the rule assumes the force and effect of law, and must be followed by the agency until it is amended or revoked. This principle applies notwithstanding an amendment to the authorizing statute affording greater discretion to the agency than is reflected in the existing rule.

When a statute grants discretion to an agency, the agency is usually free to exercise that discretion on a case-by-case basis, rather than through the adoption of general rules, unless either the statute itself or the requirements of due process make the adoption of general rules mandatory.



Alternatives for the Imposition of Conditions on the Certification of Drug Transit and Producing Countries

The President may impose certain conditions upon a drug producing or transit country seeking certification under section 490(b) of the Foreign Assistance Act of 1961. If he chooses to certify a country under section 490(b)(1)(B), he can withhold funds from the country to encourage compliance with a set of specified conditions. Alternatively, the President can determine not to certify a country in his annual certification report but inform the country that it might be recertified outside the annual cycle if it meets certain conditions. The first alternative offers greater flexibility to the President as, under the latter approach, the President is constrained in the exercise of his discretion by specific statutory requirements and his determination is subject to congressional review.


Amending the Constitution by Convention

Constitutional Law—Constitution—Article V—The Amending Process—The Convention Method


Amendment of the Farmers Home Administration Disaster Loan Program

Under applicable provisions of the Administrative Procedure Act, amendments to regulations governing the disaster loan program administered by the Farmers Home Administration (FmHA) can be made effective immediately, without giving the public a prior opportunity to comment, if the FmHA finds for “good cause” that notice and public procedure thereon would be “impracticable, unnecessary, or contrary to the public interest.”

It is for the rulemaking agency to determine whether there is “good cause” for dispensing with notice and comment; however, if the facts are such that the authorized administrative purpose would be frustrated by delay, the argument for proceeding expeditiously is reasonable on its face.


Anti-Lobbying Restrictions Applicable to Community Services Administration Grantees

The anti-lobbying rider in the Community Services Administration (CSA) appropriation act is broader than the generally applicable restrictions on lobbying by executive officers, and prohibits recipients of CSA grant funds from engaging in any activity designed to influence legislation pending before Congress, including direct contacts with Congress.

Congress is under no obligation to make funds available to any agency for every authorized activity in any given fiscal year, and there should be no presumption that it has done so.

The anti-lobbying statute, 18 U.S.C. § 1913, and the general “publicity and propaganda” rider in the General Government Appropriations Act, have been narrowly construed to prohibit the use of federal funds for “grassroots” lobbying, but not to prohibit a wide range of necessary communications between the Executive on the one hand, and Congress and the general public on the other. The considerations that underlie this narrow construction are irrelevant to a prohibition against lobbying by private persons receiving federal grants and contracts.

Statements made by individual legislators and committees after the enactment of legislation carry little weight in statutory interpretation, and are not a sufficient basis for altering a conclusion required by the plain meaning of the statutory language.


Applicability of 18 U.S.C. § 1721 to Collection of Fee for Stamped Cards

The Postal Service may charge a fee for stamped cards in addition to the face value of the postage without violating 18 U.S.C. § 1721.

Updated: April 2014