MEMORANDA AND OPINIONS |
Overview
of Document |
APPLICATION OF CONSUMER CREDIT
REPORTING REFORM ACT OF 1996 TO PRESIDENTIAL NOMINATION
AND APPOINTMENT PROCESS
fcra_dk
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Section 2403(b)(3)
of the Consumer Credit Reporting Reform Act of 1996,
which requires persons "using a consumer report
for employment purposes" to notify the consumer
prior to taking any "adverse action" based on the
report, does not apply to the process used by the
President in considering individuals for nomination
and appointment.
December 11, 1997 |
REAPPOINTMENT OF A RETIRED JUDGE
TO THE COURT OF FEDERAL CLAIMS
wilson
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The President may nominate
and, subject to the advice and consent of the Senate,
appoint to the U.S. Court of Federal Claims an individual
who has previously retired from that Court and who
is receiving a retirement annuity as a senior judge.
Upon assumption of active judicial service, the
judge must forfeit the retirement annuity for the
duration of the service.
December 3, 1997 |
APPLICABILITY OF 18 U.S.C. § 209
TO ACCEPTANCE BY FBI EMPLOYEES OF BENEFITS UNDER THE "MAKE
A DREAM COME TRUE" PROGRAM
209fbi
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The criminal
prohibition on supplementation of salary, 18 U.S.C. § 209,
does not prohibit Federal Bureau of Investigation
employees from receiving benefits under the Society
of Former Special Agents of the FBI's "Make a Dream
Come True" Program.
October 28, 1997 |
FUNDS AVAILABLE FOR PAYMENT
OF NATURAL RESOURCE DAMAGES UNDER THE OIL POLLUTION ACT
OF 1990
opaop
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The President,
acting through the Department of Transportation,
is authorized to use the Oil Spill Liability Trust
Fund to pay the claims of Natural Resource Trustees
for uncompensated natural resource damages in accordance
with section 1013 of the Oil Pollution Act of 1990,
without the need for further enactment of appropriations.
September 25, 1997 |
AUTHORITY TO INVESTIGATE COMPLAINTS BY EMPLOYESS
OF THE FEDERAL AVIATION ADMINISTRATION ALLEGING REPRISAL
FOR WHISTLEBLOWING
whistop
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The Office
of Special Counsel lacks authority to investigate
complaints brought by Federal Aviation Administration
employees alleging reprisals against them in response
to whistleblowing activity.
September 23, 1997 |
APPLICATION OF EMOLUMENTS CLAUSE
TO REPRESENTATIVE MEMBERS OF ADVISORY COMMITTEES
emols.ac.html
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The Emoluments
Clause of the Constitution does not apply to “representative” members
of advisory committees, that is, members who are
chosen to present the views of private organizations
and interests.
September 2, 1997 |
DISCLOSURE OF GRAND JURY MATERIAL
TO THE INTELLIGENCE COMMUNITY
gjicfinop1
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Grand Jury material subject
to the requirements of Rule 6(e) of the Federal
Rules of Criminal Procedure may be disclosed to
agencies in the Intelligence Community insofar as
necessary to assist government attorneys in performing
their duties to enforce federal criminal law, but
may not be used by the recipient agencies for other
purposes.
In circumstances where there is a compelling necessity
for grand jury material to be made available to the
President in furtherance of his constitutional responsibilities
over foreign affairs and national defense and where
the President has authorized the provision of such
material to the Intelligence Community, we believe
that a court should and would authorize such disclosure
outside the provisions of Rule 6(ee), on the basis
of Article II of the Constitution and separation of
powers principles. Indeed, in such compelling circumstances,
a constitutionally necessitated disclosure could properly
be made b attorneys for the Government even without
prior court approval.
Section 104(a) of the National Security
Act, as implemented by Executive Order N. 12333,
does not provide sound authority for Justice
Department disclosure of grand jury material
related to the national security to the Director
of Central Intelligence outside the provisions
of Rule 6(e).
August 14, 1997 |
USE OF GENERAL AGENCY APPROPRIATIONS
TO PURCHASE EMPLOYEE BUSINESS CARDS
gsabc
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Nothing in the Omnibus
Consolidated Appropriations Act of 1997 expressly
provides for, or prohibits, the expenditure of appropriations
of the General Services Administration for the purchase
of employee business cards.
In the absence of a contrary provision or limitation in its
appropriations act or other applicable legislation,
GSA may lawfully obligate a general or lump-sum
appropriation for the purchase of business cards
for suitable mission-related use by GSA employees.
Depending upon the purpose for which
they are to be used, GSA's purchases of business
cards for its employees may be chargeable either
to its limited appropriation for "reception
and recreation expenses" or to its general
appropriation.
August 11, 1997 |
APPLICABILITY OF SECTION 514 OF
THE 1997 EDUCATION APPROPRIATIONS ACT TO POST-SECONDARY
STUDENT AID PROGRAMS
antirotcmem
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Section 514
of the Departments of Labor, Health and Human Services,
and Education, and Related Agencies Appropriations
Act of 1997, which bars the provision of appropriated
funds, by contract or grant, to any institution
of higher education that denies campus access to
military recruiters or Reserve Officer Training
Corps representatives, applies to so-called "campus-based" student
aid programs, which involve grants to educational
entities, but does not apply to direct aid programs,
which involve grants to students rather than to
educational entities.
August 6, 1997 |
AUTHORITY OF MILITARY EXCHANGES
TO LEASE GENERAL PURPOSE OFFICE SPACE
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The Navy Exchange Service
Command, a non-appropriated fund instrumentality
("NAFI"), and similar military exchange
units constitute integral components of the Department
of Defense and their leasing authority, like that
of other DoD components, is subject to the provisions
of Reorganization Plan No. 18 of 1950, notwithstanding
their status as NAFIs. Accordingly, they are
not authorized to lease general purpose urban office
space unless such authority is delegated to them
by the General Services Administration.
August 1, 1997 |
APPLICABILITY OF 3 U.S.C. § 112
TO DETAILEES SUPPORTING THE PRESIDENT'S INITIATIVE ON
RACE
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3 U.S.C. § 112
does not apply to the details of employees to support
the President's Initiative on Race.
August 1, 1997 |
REMOVAL OF HOLDOVER OFFICIALS
SERVING ON THE FEDERAL HOUSING BOARD AND THE RAILROAD
RETIREMENT BOARD
removal
|
The President
may remove, without cause, members of the Federal
Housing Board and the Railroad Retirement Board
who are serving in holdover capacities and do not
enjoy express tenure protection by statute.
August 1, 1997 |
ADMINISTRATIVE ASSESSMENT OF
CIVIL PENALTIES AGAINST FEDERAL AGENCIES UNDER THE CLEAN
AIR ACT
cleanair.op
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The Clean
Air Act authorizes the Environmental Protection
Agency administratively to assess civil penalties
against federal agencies for violations of the Act
or its implementing regulations. Separation of powers
concerns do not bar EPA's exercise of this authority
because it can be exercised consistent with the
Constitution.
July 16, 1997 |
FUNDING OF STATE DEPARTMENT
SETTLEMENTS OF FOREIGN TORT CLAIMS
state3
|
Because 22
U.S.C. § 2669(f) expressly authorizes the Secretary
of State to pay settlements of foreign tort claims
from funds appropriated for the activities included
in the State Department Basic Authorities Act or
from funds "otherwise available," the payment of
such settlements is "otherwise provided for" within
the meaning of 31 U.S.C. § 1304(a), and therefore
the federal Judgment Fund is not available for the
payment of such settlements.
June 18, 1997 |
APPLICABILITY OF 18 U.S.C. § 208
TO THE FEDERAL COMMUNICATIONS COMMISSION'S REPRESENTATIVE
ON THE BOARD OF DIRECTORS OF THE TELECOMMUNICATIONS
DEVELOPMENT FUND
18usc208
|
Because the
Telecommunications Development Fund is a non-profit
entity that is owned, funded, and controlled by
the federal government, it is not an "organization"
within the meaning of 18 U.S.C. § 208. Therefore,
the restrictions in §
208 do not apply to the service of the Federal Communications
Commission's General Counsel on the Board of Directors
of the Fund.
June 12, 1997 |
NATIONAL ARCHIVES ACCESS TO
TAXPAYER INFORMATION
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Neither the
Secretary of the Treasury nor the President can
permit the National Archives and Records Administration
to inspect tax returns or return information, pursuant
to 44 U.S.C. § 2906 (a)(2), for purposes of
appraising the records.
May 28, 1997 |
SERVICE BY FEDERAL OFFICIALS ON
THE BOARD OF DIRECTORS OF THE BANK FOR INTERNATIONAL SETTLEMENTS
fed208
|
18 U.S.C.
§ 208(a) does not prohibit the Chairman of the Federal
Reserve Board and the President of the Federal Reserve
Bank of New York from serving in their official capacities
on the Board of Directors of the Bank for International
Settlements..
May 6, 1997 |
IMMUNITY OF SMITHSONIAN INSTITUTION
FROM STATE INSURANCE LAWS
smithsonop2
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For purposes
of the federal government immunity arising from
the Supremacy Clause of the Constitution, the Smithsonian
Institution is treated as an instrumentality of
the United States that is imbedded in the structure
of the federal government. The Smithsonian Institution
is constitutionally immune from state insurance
laws and state licensing requirements that would
otherwise apply to its issuance of gift annuities.
April 25, 1997 |
THE APPLICABILITY OF EXECUTIVE
ORDER NO. 12976 TO THE FDIC
fdic_12_schultz
|
Neither the
FDIC's broad discretion to determine the compensation
of its employees nor its status as an independent
agency exempts the FDIC from the requirements of
Executive Order No. 12976.
April 22, 1997 |
PERSONAL SATISFACTION OF IMMIGRATION
AND NATIONALITY ACT OATH REQUIREMENT
oathrnd22
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Section 504
of the Rehabilitation Act does not require accommodation
for persons unable to form the mental intent necessary
to take the naturalization oath of allegiance prescribed
by section 337 of the Immigration and Nationality
Act.
The oath requirement of section 337 may not be fulfilled
by a guardian or other legal proxy.
April 18, 1997 |
CALCULATING RATE OF PAY OF DEPARTMENT
OF JUSTICE EMPLOYEES FOR PURPOSES OF "COVERED PERSONS" DETERMINATION
UNDER INDEPENDENT COUNSEL ACT
icpay
|
The term
"rate of pay" in the section of the Independent Counsel
Act that indicates which Department of Justice employees
are "covered persons" does not include "locality-based
comparability payments" under 5 U.S.C. § 5304.
April 2, 1997 |
QUALIFICATION REQUIREMENT FOR
ALIENS UNDER THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY
RECONCILIATION ACT OF 1996
40Q.9(Schultz)
|
The phrase "40
qualifying quarters of coverage" in title IV of
the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 can fairly be interpreted
as incorporating the methodology under section 213
of the Social Security Act for calculating quarters
of coverage, but not also the strict definitions
of wages, employment, and self-employment income
under other sections of the Social Security Act.
March 27, 1997 |
PREEMPTIVE EFFECT OF THE BILL
EMERSON GOOD SAMARITAN FOOD DONATION ACT
bressman
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The Bill
Emerson Good Samaritan Food Donation Act ("Act")
preempts state
"good samaritan" statutes that provide less
protection than the Act from civil and criminal liability
arising from food donated in good faith for distribution
to the needy.
March 10, 1997 |
REVOCATION OF CITIZENSHIP
ina340
|
The Immigration
and Naturalization Service has authority to institute
either administrative or judicial proceedings to
denaturalize citizens whose criminal convictions
disqualified them from citizenship as a matter of
law. Whether the proceedings are administrative
or judicial, the INS must establish the allegations
in its complaint by clear, unequivocal, and convincing
evidence.
March 3, 1997 |
AUTHORITY OF THE ATTORNEY GENERAL
TO GRANT DISCRETIONARY RELIEF FROM DEPORTATION UNDER SECTION
212(C) OF THE IMMIGRATION AND NATIONALITY ACT AS AMENDED
BY THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF
1996
deportation_212c
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The amendment
of section 212(c) of the Immigration and Nationality
Act by section 440(d) of the Antiterrorism and
Effective Death Penalty Act of 1996 deprived
the Attorney General of the authority to grant
discretionary relief from deportation for aliens
who committed certain crimes. Section 440(d)
applies to section 212(c) applications for discretionary
relief pending on the effective date of AEDPA.
February 21, 1997 |
WAIVER OF OATH OF ALLEGIANCE
FOR CANDIDATES FOR NATURALIZATION
oathlltr3
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The required
oath of allegiance as a condition of naturalization
under section 337 of the Immigration and Nationality
Act, 8 U.S.C. § 1448(a), cannot be waived.
February 05, 1997 |
DELEGATION OF THE PRESIDENT'S
POWER TO APPOINT MEMBERS OF THE NATIONAL OCEAN RESEARCH
LEADERSHIP COUNCIL
nolc
|
Draft amendments
to 10 U.S.C. § 7902 empowering the President
to delegate to the head of a department his authority
to appoint certain members of the National Ocean
Research Leadership Council would not violate the
Constitution's Appointments Clause.
January 29, 1997 |
PROPOSED AGENCY INTERPRETATION
OF "FEDERAL MEANS-TESTED PUBLIC BENEFITS" UNDER PERSONAL
RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT
OF 1996
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The interpretation
of the phrase "federal means-tested public benefit" in
the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 proffered by the Departments
of Health and Human Services and Housing and Urban
Development - that it applies only to mandatory
(and not discretionary) spending programs - constitutes
a permissible and legally binding construction of
the statute
January 14, 1997 |
BUREAU OF PRISONS DISCLOSURE OF
RECORDED INMATE TELEPHONE CONVERSATIONS
prisons
|
The policy of
the Criminal Division requiring outside law enforcement
officials to obtain some form of legal process authorizing
access to contents of inmate telephone conversations
is not mandated by the Constitution or Title III
of the Omnibus Crime Control and Safe Streets Act
of 1968.
The practice of profiling specific groups of inmates
for monitoring raises concerns when it requires or causes
the Bureau of Prisons to alter its established monitoring
procedures for purposes unrelated to prison security or
administration.
Inmates have a First Amendment right to some minimum
level of telephone access, subject to reasonable restrictions
related to prison security and administration. Under certain
circumstances they also may have a Sixth Amendment right
to make telephone calls to their attorneys.
January 14, 1997 |
