Opinions
Funding of Attorney Fee Awards Under the Equal Access to Justice Act
Under the Equal Access to Justice Act, the authority and responsibility of an agency adjudicative officer or judge to make an award of attorney fees against the United States does not depend upon the availability of appropriated funds to pay the award. If no appropriated funds are available to pay an award, it remains an obligation of the United States until sufficient funds are appropriated.
Section 207 of the Equal Access to Justice Act precludes payment of a fee award against the United States from the judgment fund without some additional legislative action However, under the funding provision of the Act, an agency’s unrestricted general appropriation is available to pay such awards.
Congress intended agencies to bear the major burden of paying fee awards under the Act from their own general appropriation, so as to encourage more responsible agency behavior, and an agency thus has only limited discretion to decline to pay such awards.
Power of the President to Remove Presidential Appointees From the National Capital Planning Commission
There is no indication in the text or legislative history of the Home Rule Act that Congress intended to limit the President’s power to remove his appointees from the National Capital Planning Commission.
The composition of the Commission and the duties imposed on it indicate that Congress did not intend it to be a quasi-legislative or quasi-judicial body operating free of the President’s policy influence, and its duties are essentially of an executive nature. Thus any limitation on the President’s removal power would be unconstitutional.
Removal of Members of the Advisory Council on Historic Preservation
Congress did not intend to limit the President’s power to remove members of the Advisory Council on Historic Preservation without cause prior to the expiration of their terms of office. While certain of the Council’s structural attributes and substantive functions suggest that Congress intended to vest the Council with a measure of day-to-day independence from other federal agencies, this does not mean that it intended the Council to operate free of the supervision and control of the President himself through his exercise of the removal power.
The primary functions of the Council are executive in nature, and thus not such as would permit Congress constitutionally to insulate its members from the President’s removal power; it will therefore not be inferred from Congress’ silence on the matter that it intended to do so.
A legislative scheme in which disputes between executive agencies are to be settled in federal or state court would raise a number of serious constitutional problems, under both Article II and Article III, and such an intent on Congress’ part will not be assumed absent the most compelling and unambiguous language.
Bonneville Power Administration’s Claim for Reimbursement in Connection with Land Transfer
Under the Federal Property and Administrative Services Act of 1949, the Bonneville Power Administration is entitled to be reimbursed the fair value of certain property that it transferred to the Secretary of the Interior for the use and benefit of the Puyallup Indian Tribe, without regard to whether said property is located within the Puyallup Indian Reservation.
Under the Federal Property and Administrative Services Act of 1949, fair value reimbursement to the transferor agency by the acquiring agency is mandatory in all cases where the property was acquired with funds from a revolving fund, 40 U.S.C. §§ 483(a)(1), 485(c). The General Services Administration has no discretion to waive such a repayment obligation by the acquinng agency, even where, as is arguably the case here, the acquiring agency is under an independent statutory obligation to acquire the land.
Compensation of Standing Trustees Under the Bankruptcy Reform Act
The compensation scheme made applicable to court-appointed chapter 13 standing trustees by the Bankruptcy Reform Act of 1978 is designed to encourage maximum economic efficiency in administering plans, and it would be contrary to congressional intent to permit a subsequent year’s surplus to be applied to a prior year’s deficit so as to increase the trustee’s compensation for that prior year. However, a subsequent surplus may be applied to offset out-of-pocket losses suffered by the trustee in a prior year so as to permit the trustee to break even for that year.
Employment Status of “Volunteers” Connected with Federal Advisory Committees
The Department of Commerce may employ volunteers as consultants to the President’s Task Force on Private Sector Initiatives pursuant to 5 U.S.C. § 3109, as long as the services involved are temporary or intermittent, and purely advisory in nature. It must also be clearly understood that such volunteers expect no governmental compensation.
Federal agencies ordinarily may not accept voluntary services or other donations in the absence of express statutory authority, and volunteers should not in any case be used on a broad scale or to accomplish tasks ordinarily performed by paid government employees.
Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act
The Emoluments Clause of the Constitution prohibits government employees from accepting any sort of payment from a foreign government, except with the consent of Congress. Congress has consented to the receipt of minimal gifts from a foreign state, 5 U.S.C. § 7342, but has not consented to receipt of compensation for services rendered.
The fact that an employee of the Nuclear Regulatory Commission would be paid by an American consulting firm for services he rendered in connection with construction of a nuclear power plant in Mexico would not, under the circumstances presented here, avoid the Emoluments Clause, since the Mexican government would be the actual source of the payment.
Department of Justice Representation in Federal CriminalProceedings
The Attorney General’s statutory authority to provide legal representation to individual federal employees sued for acts occurring in the course of their official government duties does not extend to representation in a federal criminal proceeding, since in such a case the interests of the United States have been defined by the prosecuting authority to be adverse to those of the defendant.
The Pocket Veto: Historical Practice and Judicial Precedent (I)
The following two memoranda examine historical practice and judicial precedent under the Pocket Veto Clause of the Constitution, Art. I, § 7, cl. 2, in order to advise the President concerning the efficacy of a pocket veto during both intrasession and intersession adjournments of Congress.
Recovery of Interest on Advance Payments to State Grantees and Subgrantees
Section 203 of the Intergovernmental Cooperation Act exempts both the states and their subgrantees from accountability for interest earned on federal grant funds pending their disbursement, and such interest may thus not be recovered by the federal government.