WAIVER OF AGENCY REGULATIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP79-00498A000700150009-9
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 3
• Document Creation Date: December 9, 2016
• Document Release Date: September 8, 2000
• Sequence Number: 9
• Publication Date: December 17, 1975
• Content Type: MF

Approved For Release 2iO'i)O tl`A-I DF&9-00 WOpg7=($0009-4 -5i
*OGC Has Reviewed* 17 December 1975
MEMORANDUM FOR: Director of Central Intelligence
SUBJECT : Waiver of Agency Regulations
REFERENCE : Memo for the DCI fm IG, dtd 5 Dec. 75, Subj:
Employee Appeal for Recompense
1. Referent memorandum outlines the case of an employee who filed
a grievance with the Inspector General for the denial of reimbursement for
the shipment of a foreign-purchased automobile to the United States in June
1974. This employee was overseas in the fall of 1972 when Congress expressed
an intent to cease Government payment of the shipping costs to the United States
of foreign automobiles purchased by Federal employees overseas. The Agency
considers itself bound by this expression of congressional intent and, accordingly,
sent a book cable to the field notifying employees of the prohibition. In addition,
Headquarters Regulation _was changed accordingly, effective 1 January
1973.
2. The employee in this case initially asked for a ruling from this Office
that his POV was not foreign purchased, and hence not within the prohibition.
In OGC 74-1868, dated 15 October 1974, this Office expressed the legal opinion
that the vehicle in question was foreign purchased under both the Maryland
Uniform Commercial Code and, more importantly, the intent of Congress as
outlined in the House Report in the DOD Appropriation Act (House Report
No. 92-1389, 11 September 1972).
3. The employee then submitted a request for reconsideration of our
opinion, repeating essentially his former statements, but making a new allegation
that he thought PCS orders were required to ship his POV to the U.S. even after
receipt of the book cable. However, he never did claim that he would have
shipped his POV home if he had been aware of the true state of things, and
specifically stated it would have been a hardship to do so. In OGC 75-2114,
dated 5 June 1975, this Office again stated that the employee was not entitled
to payment. After reconsidering the employee's request the Inspector General,
on 5 December 1975, recommended and you approved that the employee be
reimbursed the cost of shipment of his POV.
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4. I strongly recommend that you reverse your decision approving
payment for shipment of the employee's POV to the U.S. in June 1974. (I
understand that payment has been withheld pending your review of this and a
DDA memorandum.) In my opinion the reasons which existed for implementa-
tion of the ban on shipment at Government expense clearly apply to the employee
in this case. Thus, your action in permitting reimbursement to the employee
amounts to either:
a. a retroactive change in the Agency's decision in the fall of 1972
to abide by the congressional ban, or
b. a waiver of the regulation for an individual case.
The former represents a reversal of policy for which it might be wise, or
perhaps necessary, to consult the appropriate committees of Congress. If,
however, this is your decision, I recommend that an employee notice be
published which advises all persons similarly situated that they may be
entitled to receive payment for expenses incurred by them in the shipment of
such vehicles. If the latter is your decision, it creates a problem of uniform
enforcement of the regulation and questions of equity for others who are
similarly situated. A recent commentary on the adherence to regulations by
agencies which have created them noted the following:
Some agency violations of regulations may
result in more favorable, rather than less favorable,
treatment to the excepted party. For example, agencies
have sometimes failed to enforce regulations requiring
that a person, seeking a government benefit comply
with certain application procedures or meet specified
substantive qualifi cations. Since such violations, or
waivers, allow a person a benefit to which he would
not otherwise be entitled, they may be unfair to those
similarly situated who are denied waivers.
Moreover, an agency's practice of waiving its regulations,
without explanation, may breed resentment among those
who are denied waivers, particularly as the number of
persons who are granted them increases. 87 Harv. L. Rev.
629, 637 (1974).
ILI
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In referring to agencies' selective enforcement of regulations, Kenneth Culp
Davis, a leading authority on administrative law practice, has stated in his
l=ook, Discretionary. Justice, U. of Ill. Press (1969), at page 170:
The discretionary power to be enien is an impossi 1 y
without a concomitant discretionary power not to be
lenient, and injustice from the discretionary power not
to be lenient is especially frequent; the power to be
lenient is the power to discriminate. (Emphasis in
original. )
5. Again, I strongly recommend that you reverse your decision in
this case or take the other action which I have indicated.
-Acting General Counsel
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