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Of Public Funds And Public Participation: Resolving The Issue Of Agency Authority To Reimburse Public Participants In Administrative Proceedings, Carl W. Tobias

Law Faculty Publications

A number of federal agencies have recently relied upon implied power to reimburse expenses incurred by public participants in administrative proceedings. When the United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA) attempted to exercise this authority, their efforts were challenged by parties who, relying on a purportedly controlling decision of the Second Circuit, contended that participant funding was an impermissible exercise of administrative power. The USDA initiative was upheld in district court, but the FDA program was invalidated by a divided Fourth Circuit panel.

The dispute over agency reimbursement has not been confined to the …