assert that the legal authority was sufficiently stated and that the rule was properly promulgated under an exception to the 30-day notice requirement. The Court concludes that the OGE followed the necessary rulemaking procedures and therefore upholds the regulations.
A. Lack of Legal Authority Claim
The APA requires that notice of a proposed rule include "reference to the legal authority under which the rule is proposed." 5 U.S.C.A. § 553(b)(2). The interim rule states the following:
Authority: 5 U.S.C.A. appendix 102(a)(1)(A), appendix IV and appendix 501-505; E.O. 12674, 54 FR 15159, 3 C.F.R. 1969 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547. 56 Fed. Reg. at 1723.
In addition, under the heading "Purpose" the interim rule states that it is issued under authority of titles II and VI of the ERA and notes the particular provisions of the Act which it implements. See 56 Fed. Reg. at 1723. The supplementary information provided at the beginning of the interim rule also cites the authority under which it is promulgated. See 56 Fed. Reg. at 1721.
Therefore, the Court finds that the agency made reference to the legal authority. The question then is whether the stated authorities support the issuance of the challenged regulation. The Court finds that they do. Executive Order 12674 sets out general principles of ethical conduct and gives the OGE the responsibility for "promulgating . . . regulations that establish a single, comprehensive, and clear set of executive-branch standards of conduct." Exec. Order No. 12674, 3 C.F.R. 215, 216 (1989 Comp.). One of the principles enunciated by that Executive Order is that "employees shall not use public office for private gain." Id. at 215. Although none of the points in the Executive Order explicitly mentions travel expenses, the broad principles outlined, and the grant of authority given the OGE, encompass the content of § 2636.202(b) challenged here.
B. Lack of Notice Claim
Plaintiffs' second APA claim involves the APA's requirement that "publication or service of a substantive rule shall be made not less than 30 days before its effective date." 5 U.S.C.A. § 553(d). Here, the challenged section of the rule took effect January 1, 1991, despite its not being published until January 17, 1991. See 56 Fed. Reg. at 1721. Clearly, the 30-day notice requirement was not met. Nevertheless, the APA excepts certain rules and situations from the 30-day requirement. These include
interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or . . . when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. [ 5 U.S.C.A. § 553(b)(3)(A), (B).]
In addition, the rulemaking requirements do not apply to matters "relating to agency management or personnel." 5 U.S.C.A. § 553(a)(2). Defendants claim that at least one of these exemptions applies here. However, these exceptions are to be "' . . . narrowly construed and only reluctantly countenanced.'" See American Fed'n of Gov't Employees v. Block, 210 App. D.C. 336, 655 F.2d 1153, 1156 (D.C. Cir. 1981) (quoting Department of Envtl. Protection v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980)). Nevertheless, the Court finds that the good cause exception applies.
At the time the OGE promulgated the interim rule, it relied on the good cause exception to waive the 30-day requirement for the majority of the interim rule, including the challenged section. The OGE supported this decision because of the penalties to which employees potentially were subject should they violate provisions of the ERA, which took effect on January 1, 1991. See 56 Fed. Reg. at 1722.
Although the challenged section of the interim rule does not involve provisions of the ERA but rather its relationship to other ethical regulations and standards, the Court finds that this provision also meets the "good cause" exception. If the interim rule had been promulgated without § 2636.202, the rule would have given the impression that acceptance of travel expenses is permitted in all circumstances. To dispel this conclusion, the OGE incorporated provisions, including the one at issue here, relating to other ethical obligations as a part of the interim rule.
The Court finds that the prohibition on the acceptance of compensation was longstanding OGE policy. OGE Memorandum 85 x 18 (Oct. 28, 1985), at Defendant's Motion To Dismiss, Ex. 2. OGE Memorandum 85 x 18 (Memorandum) creates standards to enforce Executive Order 11122 which, like its successor Executive Order 12674, forbids "using public office for private gain." See 30 Fed. Reg. 6469 (1965). The Memorandum states that "employees are prohibited from receiving compensation for lectures or articles when the activity focuses specifically on the employing agency's responsibilities, policies, and programs." OGE Memorandum 85 x 18, at 2.
Although not specifically defined in the Memorandum, the word "compensation" is general enough to include travel expenses. EPA acknowledges that prior to the interim rule it had interpreted "compensation" to exclude reimbursement for travel expenses. This misinterpretation, however, supports the need for OGE to clarify its policy in the interim rule. Therefore, in order not to mislead employees and to make the ethical obligations clear to federal employees and their supervisors, OGE had good cause to exempt § 2636.202(b) from the 30-day notice and comment requirement.
Having found that the OGE properly promulgated § 2636.202(b), the Court also upholds both the EPA's Ethics Advisory and the April 8th Memorandum. Both of these documents merely summarized the contents of the OGE interim rule.
Therefore, for the reasons stated above, this Court upholds the prohibition on the reimbursement of actual and necessary travel expenses to executive branch employees for speaking or writing on subjects directly relating to the policies, programs, or responsibilities of their agencies. Accordingly, the Court grants the defendants' motion for summary judgment and dismisses Counts I, II, III, IV, V, and VII, and denies plaintiffs' request for a permanent injunction.
An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 780 F. Supp. 1033.
Date: FEB 19 1992
ORDER - February 19, 1992, Filed
For the reasons stated in the Court's accompanying Opinion, it hereby is
ORDERED, that judgment shall be entered in favor of the defendants as to Counts I, II, III, IV, V, and VII. It hereby further is
ORDERED, that within 14 days of the date of this Order, the parties shall notify the Court in writing as to how they wish to proceed as to Count VI.
Stanley S. Harris
United States District Judge
Date: FEB 19 1992