Drug Enforcement Administration's Authority to Impose Civil Penalties ( 1977 )

March 4, 1977
77-10 MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Drug Enforcement Administration’s Authority to
Impose Civil Penalties
This is in response to your memorandum posing the question whether
the Administrator of the D rug Enforcement Administration (DEA ) has
the pow er to fix and settle civil penalties under 21 U.S.C. § 842(c)(1), as
amended by the Comprehensive D rug Abuse Prevention and Control
A ct o f 1970, Pub. L. No. 91-513, § 402(c)(1), 84 Stat. 1236, 1262,
without instituting litigation to obtain an enforceable judgment. We are
o f the opinion that it does not.
Under § 842(c)(1), which imposes a civil penalty, the Federal district
courts have jurisdiction to enforce the penalty. That jurisdiction is both
original and exclusive, as appears from the face of the A ct and from its
legislative history. The House Report on the Comprehensive Drug
Abuse Prevention and Control A ct of 1970 described jurisdiction to
enforce § 402 in the following terms:
“The U.S. District Court or otherwise proper U.S. court having
jurisdiction of matters o f this nature shall have jurisdiction to
enforce this paragraph.” H.R. Rep. No. 91-1444 (Part 1), 91st
Cong., 2d Sess. 47 (1970), reprinted in [1970] U.S. Code Cong. &
Ad. News 4566, 4615.
M oreover, it is evident from the structure of the Act that Congress
intended penalties to be imposed through the courts rather than
through administrative action by the Attorney General or his designees.
F or example, § 508 of the Act, listing powers of enforcement person­
nel, does not include any authority whatever to adjudicate violations of
the statute or to impose penalties. Section 511, respecting forfeitures of
property, requires that they be made in accordance with governing
rules of judicial procedure unless incident to a valid warrant, arrest,
prior judgment, or equivalent authority. Section 512(a) authorizes the
courts—but not the Attorney General or the Administrator—to issue
injunctions to forbid violations of Title II o f the Act (which includes
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§ 402), in accordance with the Federal Rules of Civil Procedure. Sec­
tion 512(b) provides jury trials for violators. As a final example, § 513
authorizes persons threatened with enforcement action to show cause
why they should not be prosecuted. The House Report states that
“[t]his proceeding is generally intended to cover technical violations by
registrants, and allows for administrative compliance, if possible, before
court action is initiated.”
Only the courts of the United States can impose the penalties de­
scribed in § 402; the A ct contains no indication to the contrary. T here­
fore, the Administrator may not rely on the authority of 31 U.S.C.
§§ 952 and 953 to “settle, compromise, or close claims” arising out of
the activities of DEA. While those provisions would support D E A
action to collect a civil penalty once imposed, they do not empower
the Administrator to levy it himself. The claims-collection procedure
cannot be invoked until a penalty has been imposed by a court of
proper jurisdiction.1
In summary, the Administrator is not authorized to adjudicate viola­
tions of 21 U.S.C. § 842 or to impose civil penalties under § 842(c)(1).
Jurisdiction to do so is vested exclusively in the courts o f the United
States. The appropriate means to enforce the civil penalties provided
for in that section are through a civil action in district court. If a
judgment and penalty result, the Administrator may then proceed to
collection or settlement.
John M . H armon
Acting Assistant Attorney General
Office o f Legal Counsel
1 T h e term “claims” has a m ore restricted m eaning than m ight at first be thought. 4
C F R § 102.6, for exam ple, does not serve to define “claims” generally. It simply states
that agencies seeking the collection o f statutory penalties, forfeitures, o r debts provided as
an enforcem ent aid should consider suspension o r revocation o f licenses on the p a rt of
violators w h o delay in making paym ent. A num ber o f F ederal agencies have express
statutory authority to adjudge violations o f law or reguhion and to impose statutory
penalties. D E A does not.
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