Civil Service
Question 1
Dear Marcus,
I am thankful that you have considered me as the right person to offer you advice on your constitutional rights. I am sorry that you are being faced with a disciplinary action. Following your request, I wish to inform you of the rightful procedure that should be followed. When a federal employee has been issued with a proposed act or even an actual act of disciplinary or even an action that is adverse, the most important thing is to understand their federal rights and thus fight to ensure that they are protected. Thus, you should fist have a clear understanding of these rights and the best ways in which you can fight to protect them.
As a non-probationary employee, you have to know that probationary employees can be terminated due to misconduct that essentially would not lead to the termination of non-probationary federal employees. Following the 5 U.S.C. chapter 863, the law that guards the career of a Civil Service employee in non-probationary status, you are allowed to be interviewed because of the misconduct being accused of and thereafter the secretary issues you with a written notice stating the proposed action to be taken and copy of the charges against you. According to the law, after you have been issued with the notice, you are allowed to give your response. This you can do in writing or orally before the decision is made on the action that will be taken against you.
You can also contact a federal employee attorney. The attorney will offer you special advice and they can also serve as your representative. At each stage of the investigation, the attorney will work with you and help in finding a solution that will be best for your career. The attorney will help you to write the arguments that you need to put forward in your response. However Marcus, it is your civil right to seek for representation and thus denial of this will be a violation of your rights. In case you will make an oral response, the attorney can speak on your behalf.
Following the review of your reply, the secretary will decide to either withdraw or uphold the proposed action or even minimize it. If the decision has been made to terminate you, you are entitled to an appeal and this you can make to the MSPB (Merit Systems Protection Board). The 5 U.S.C. chapter 75, the law that covers appeals made after the dismissal of non-probationary employees following their misconduct and in some instances for their performance shows that your appeal will be within the law. The process does not stop here Marcus, if your appeal to the MSPB is not successful, you do not have to loose hope. You can still appeal to the US court of appeals and even to the United States Supreme Court.
One thing you should know Marcus is that the process of appealing can be stressful but you should stand it if you really want to have the action taken against you reversed and you being reinstated. After you have gone through the appeal process successfully and you are reinstated, you will be a very happy man. Other than securing back your job, there are possibilities of being compensated for the damages. These will include benefits, full back pay, and also the reimbursement of the fee incurred in hiring the attorney.
Thank you for trusting in me and I believe that you will be reinstated. In case you need any further advice or opinions, you can always write to me and I will be glad to offer you my help.
Question 2
The transfer act is an act of the congress. It is through this act of congress that authorization was made on the transfer of Washington national airport operating control and the Dulles international airport from the MWAA. According to the transfer act, the board of directors is allowed to create a board of review and it is supposed to have control over issues related to transport.
The transfer act can be challenged in that it allowed the members of the board to veto decisions that are made by the directors. This power is unconstitutional in that it violates the constitutional doctrine of power separation. Thus if the board can veto the decisions of the directors, it implies that they can act unconstitutionally. The citizens for the abatement of aircraft noise (CAAN) can raise the concerns on pollution, noise and safety.
The basis for the challenge here would be that the plan would lead to the increases in pollution, accidents and noise in the airport and aircrafts. Thereby, the injuries caused to persons can be traced to the veto power vested on the board. The issue on power separation comes because being a state creation; the board does not exercise federal power or act as a congress agent. Therefore, if the board is not supposed to exercise federal power then it implies that the powers vested on it to veto the decisions of the directors can be constitutionally challenged.
The purpose of any board should be to support the federal interests and those interests of the public. Thus, if the powers of the board of review do not serve the interests of the people, then the people are being violated. The constitution cites that the rights of all the people should be protected. Challenging the act which gives the board powers to act in ways that may result to violation of the rights of citizens can thereby be considered as acting within the constitution.
A report by the US Supreme Court center (2004), shows that the congress did not follow a procedure that was acceptable in the process of delegating authority to the board to make decisions. To prevent the danger of violation of the executive rules, the congress has two basic constraints. According to the law, the congress is not supposed to vest executive power on itself, its agents or members. Further, constitutionally, an agent of congress is not allowed to exercise executive power. In the case of MWAA, there was the imposing of the will of the congress. Thus, the congress acted in a way that was beyond its role as defined by the constitution.
Because of this way in which the congress imposed its will on the MWAA, the NAAN can raise challenges to it. For the establishment of the board of review, there was the drafting of substitute bills. According to the US Supreme Court center (2004), the board of review was meant to act as a congress agent. It was after the congress got a view from the department of justice that a MWAA veto action would be a legislative action that it adopted the review.
The board of review requires congress members to work in their individual capacities. This then clearly cites that the congress has vested executive power on itself something which is against the procedure of authority delegation. Thereby, the interests of the people are affected here and this is unconstitutional since all the laws that are made are supposed to protect the interests of the people.
However, the challenging of the transfer act is faced by some challenges as well. Though it is constitutionally right to draw into question any act of the congress that an individual or an agency feels that it affects the interests of the public, the court first needs to certify the fact to the attorney general. Following this the United States is permitted to intervene and thus present evidence. This is allowed provided the evidence provided is acceptable in that case. Thus, through the intervention of the state there may be possibilities of the NGO not been able to go through with the case.
Question 3
The APA (Administrative Procedure Act) governs the establishment of regulations that would govern the federal states administrative agencies. Further, the APA sets up the procedures for federal courts to review the decisions made by agencies. According to the APA, regulatory agencies of the state are allowed to make rules and regulations that would be important towards the implementation and enforcement of major acts of the legislature for instance the food drug and cosmetic act, occupational health and safety act.
In this scenario, the cigarette manufacturers argue that they were not given the chance to cross examine the report of Dr. Pike in the initial period. The provisions of the APA are that every agency should make their final opinions available to the public for copying and inspection before it is amended as law. Thus, since the cigarette manufactures were not given the opportunity to inspect these opinions, they can challenge the validity of the rule.
Each agency should follow all the APA provisions in regard to the period that the public is allowed to make comments. The manufacturers further claim that the ATF did not provide enough information concerning Dr. Pike’s report in the notice of proposed rulemaking. This can be a valid rule since in rule making the agency should ensure that the provisions that they make are wholly made available to the public. These include the rules that the agency adopts and are not in the federal register. Thereby, to be adopted as law, those whom it would affect are supposed to be given the chances to review the provisions and thus give their consent. Further, the manufacturers are supposed to be fully aware of the consequences that the adopted laws would bring them.
Laws are supposed to be meant to serve the interests of the greater population and not a specified group of people. The cigarette manufacturers have cited that the addition of magnesium hydrosulfide is effective towards the reduction of cigarette smoke. This also reduces the risks associated with cigarette smoke for instance it can lead to cancer and is also a way of air pollution. The smoke affects not only the cigarette smoker but also other people in the vicinity. Therefore, inclusion of magnesium hydrosulfide is a great step towards the protection of the public.
Though the manufacturers claim that it would be costly to add magnesium hydrosulfide, the costs are also felt by the down lines who are the consumers. Since the law was made to protect the public, this may not be easy to challenge. The addition of the ginseng was not improperly done because the ATF enacted the rule to protect the health of the people. Reports from experts in the medical field have shown that the herb ginseng reduces the adverse effects that are caused by cigarette smoking.
The APA cites that any changes in the procedures and policies of an agency should be reported to the congress. In this case, contacts were only made between the senator and the chairman. Therefore, this was not lawfully enacted since not the entire congress was involved. Further, authority should not with hold information regardless of its kind from the congress. Thus, for contacts to be made, the authority has to inform the congress something that was not followed in this case. Following the claims that the cigarette manufacturers have, they have enough to argue that the rule that was meant was unlawful and thereby not valid.
References
Administrative Procedure Act. Retrieved on May 5, 2011 from: http://usgovinfo.about.com/library/bills/blapa.htm.
US Supreme Court center, (2004). U.S. Supreme Court. Retrieved on May 5, 2011 from: http://supreme.justia.com/us/501/252/case.html#265.
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