| Memoranda & Opinions |
Overview of Document |
PROPOSED SETTLEMENT OF DIAMOND
v. DEPARTMENT OF HEALTH & HUMAN SERVICES
hhsopmop2
|
The Department
of Health and Human Services may lawfully enter into
settlement providing that the positions of specific
employees will not be reclassified until they vacate
the positions if, in light of the facts of the case
and recognizing the inherent uncertainty of litigation,
the agency concludes that the court might find there
was a cognizable danger of recurrent sexual discrimination
in the reclassifications in violation of Title VII
of the Civil Rights Act of 1964.
December 4, 1998 |
MISCELLANEOUS RECEIPTS ACT EXCEPTION
FOR VETERANS' HEALTH CARE RECOVERIES
blood
|
The Veterans Reconciliation Act of 1997 creates an exception to the
Miscellaneous Receipts Act to the extent that a recovery
or collection under the Federal Medical Car Recovery Act
is based on medical care or services furnished under chapter
17 of title 38, United States Code, and thus allows the
deposit of such a recovery or collection in the Department
of Veterans Affairs Medical Care Collections Fund.
December 3, 1998 |
PRESIDENTIAL DETERMINATION ALLOWING
FINANCIAL ASSISTANCE TO TIBET
tibet
|
President Carter's 1980 determination that financial assistance
to the People's Republic of China would be in the national
interest satisfies the requirements of section 2(b)(2)
of the Export_Import Bank Act of 1945 and thus permits
the Export_Import Bank to provide assistance to the
region of Tibet, its provincial government, and its
residents without any presidential action in addition
to the prior determination made with respect to China.
November 6, 1998 |
THE AUTHORITY OF THE BUREAU OF
THE CENSUS TO ADJUST POPULATION DATA FOR PURPOSES OTHER THAN
APPORTIONMENT
census
|
The Commerce
Department has the authority to use sampling and other
recognized statistical procedures in order to correct
the unadjusted population figures obtained in the decennial
census for the year 2000, at least for purposes other
than providing the basis for apportioning seats in
the United States House of Representatives.
October 7, 1998 |
LACK OF AUTHORITY OF THE OFFICE OF
THE UNITED STATES TRADE REPRESENTATIVE TO REPRESENT PRIVATE
INDUSTRY IN PROCEEDINGS BEFORE THE UNITED STATES INTERNATIONAL
TRADE COMMISSION
ustr2ltr
|
The Office of the
United States Trade Representative lacks authority
under the Trade Act of 1974 or its own organic statute
to provide legal representation to a private domestic
industry in administrative proceedings before the United
States International Trade Commission.
September 24, 1998 |
WHETHER THE FIFTH AMENDMENT PROHIBITS
DISCLOSURE OF THE RESULTS OF A COURT-ORDERED MENTAL EXAMINATION
TO THE GOVERNMENT DURING THE GUILT PHASE OF A TRIAL
rule122a10
|
The Fifth Amendment
privilege against self-incrimination does not prohibit
disclosure to the government, during the guilt phase
of a trial, of the results of a court-ordered mental
examination.
September 21, 1998 |
OFFICIAL SERVICE BY STATE DEPARTMENT
EMPLOYEES ON THE BOARDS OF AMERICAN-SPONSORED SCHOOLS OVERSEAS
schoolsdos
|
Official service
by State Department employees on the boards of American-
sponsored schools overseas is authorized by statute
and does not violate 18 U.S.C. §
208.
September 11, 1998 |
AUTHORITY OF THE D.C. COUNCIL UNDER
THE HOME RULE ACT TO AMEND THE SCHEDULE OF HEIGHTS OF BUILDINGS
homerule3opn |
The Council of the District of Columbia has the authority, under
section 602(a)(6) of the Home Rule Act of 1973, to
amend the Schedule of Heights of Buildings Adjacent
to Public Buildings as long as any amendment is within
the overall limitations set forth in the Building Height
Act of 1910.
The D.C. Council's authority is not further restricted
by the limitations contained in the Schedule of Heights that
was in effect on December 24, 1973.
August 28, 1998 |
APPLICATION OF 18 U.S.C. § 208
TO SERVICE BY EXECUTIVE BRANCH EMPLOYEES ON BOARDS OF STANDARD-SETTING
ORGANIZATIONS
standardsorg
|
Under 18 U.S.C. § 208, a federal employee may serve as a
member of the board of a private voluntary standards
organization to the extent necessary to permit participation
in his or her official capacity in the organization's
standard-setting activities.
August 24, 1998 |
CONSTRUCTION OF STATE REPORTING REQUIREMENTS
IN SECTION 404 OF THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY
RECONCILIATION ACT
section404
|
The better interpretation
of the state reporting requirements in section 404
of the Personal Responsibility and Work Opportunity
Reconciliation Act is that they apply only to those
state agencies administering the particular federally
funded program in question, not to all state agencies
in a State that receives funds under the program.
August 18, 1998 |
APPLICABILITY OF 18 U.S.C. § 208
TO SERVICE BY FEDERAL OFFICIALS ON THE DISTRICT OF COLUMBIA
DOWNTOWN BUSINESS IMPROVEMENT DISTRICT CORPORATION BOARD
OF DIRECTORS
gsa208fn
|
A federal official
serving on the Board of Directors of the D.C. Downtown
Business Improvement District Corporation in his or
her official capacity is not a director of an outside
organization within the meaning of 18 U.S.C. § 208,
and therefore the official's service is not barred
by § 208.
August 7, 1998 |
INELIGIBILITY OF NEW JERSEY TRANSIT
CORPORATION BOARD MEMBER FOR APPOINTMENT TO AMTRAK BOARD
OF DIRECTORS
amtrakrev1
|
A public member
of the Board of Directors of the New Jersey Transit
Corporation constitutes a representative of rail management
under Section 411(a) of the Amtrak Reform and Accountability
Act of 1997 and is therefore ineligible for appointment
to the Amtrak Board of Directors.
July 30, 1998 |
ADMINISTRATIVE SETTLEMENT OF DISPUTES
CONCERNING DETERMINATIONS OF MINERAL ROYALTIES DUE THE GOVERNMENT
mmsopd2
|
The Department of
the Interior is authorized, before the completion of
an administrative appeal, to settle disputed determinations
of mineral royalties due the Government exceeding $100,000
made by the Minerals Management Service without obtaining
the approval of the Justice Department under the Federal
Claims Collection Act.
July 28, 1998 |
CONSTITUTIONAL CONCERNS RAISED BY
THE COLLECTIONS OF INFORMATION ANTIPIRACY ACT
righto
|
The proposed Collections
of Information Antipiracy Act raises difficult and
novel constitutional questions concerning Congress's
power to restrict the dissemination of information.
Congress may not, pursuant to the Intellectual Property
Clause of the Constitution, create "sweat of the brow" protection
for compiled facts, at least insofar as such protection
would extend to what the Supreme Court has termed the
nonoriginal portion of such a compilation. Either or
both the Intellectual Property Clause and the First
Amendment may impose limitations on the exercise of
congressional power under the Commerce Clause that
would raise serious constitutional concerns regarding
the constitutionality of the bill.
July 28, 1998 |
APPROPRIATE SOURCE FOR PAYMENT
OF JUDGMENTS AND SETTLEMENTS IN UNITED STATES v. WINSTAR
CORP. AND RELATED CASES
winstarfinal
|
The Federal Savings
and Loan Insurance Corporation Resolution Fund is the
appropriate source of payment for judgments against,
and settlements by, the United States in United States
v. Winstar Corp. and similar cases arising from the
breach of certain agreements to which the Federal Savings
and Loan Insurance Corporation was a party.
July 22, 1998 |
WAIVER OF STATUTES OF LIMITATIONS
IN CONNECTION WITH CLAIMS AGAINST THE DEPARTMENT OF AGRICULTURE
solmem_612
|
The Supreme Court's
decision in Irwin v. Department of Veterans Affairs
made no alteration in the fundamental rules governing
waivers of sovereign immunity in actions against the
United States. Irwin and the cases following it therefore
provide no support for the novel conclusion that the
executive branch has the discretion to dispense with
a congressional mandated statute of limitations in
litigation or the compromise of claims. Unless Congress
provides to the contrary, adherence to the relevant
statute of limitations remains a strict and non-waivable
condition on suits against the federal government.
Enactment of legislation authorizing the payment of claims
barred by the statute of limitations under the Equal Credit
Opportunity Act is the necessary and constitutionally appropriate
means of satisfying such claims.
June 18, 1998 |
ACCESS TO CRIMINAL HISTORY RECORDS
BY NON-GOVERNMENTAL ENTITIES PERFORMING AUTHORIZED CRIMINAL
JUSTICE FUNCTIONS
chriltr004 |
Non-governmental entities performing authorized criminal justice
functions under contract with government law enforcement
agencies may be granted access to criminal history
records maintained under the authority of 28 U.S.C.
§ 534, subject to effective controls to guard against
unauthorized use and to insure effective oversight by the
Department of Justice.
Because Department of Justice regulations implementing
28 U.S.C. § 534 do not affirmatively authorize dissemination
of criminal history records to non_governmental entities
under contract to assist law enforcement agencies, those
regulations should be amended to provide such authorization
before access is granted to those entities.
June 12, 1998 |
APPOINTMENT OF VICE CHAIR OF FEDERAL
RESERVE BOARD TO SERVE CONCURRENTLY AS CHAIR OF THE DISTRICT
OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE
AUTHORITY
reserve |
The Vice Chair of the Federal Reserve Board may also serve as
Chair of the District of Columbia Financial Responsibility
and Management Assistance Authority without violating
sections 205 or 208 of title 18. Her dual service would
also have to comply with the Federal Reserve Act's "entire-time" requirement.
June 1, 1998 |
EFFECT OF POSSE COMITATUS ACT ON
PROPOSED DETAIL OF CIVILIAN EMPLOYEE TO THE NATIONAL INFRASTRUCTURE
PROTECTION CENTER
pca1fnl |
The proposed detail of a civilian employee of Department of Defense
to the National Infrastructure Protection Center, a
component of the Federal Bureau of Investigation, is
permissible under the Posse Comitatus Act.
May 26, 1998 |
WHISTLEBLOWER PROTECTIONS FOR CLASSIFIED
DISCLOSURES
whistle_housetestimony_olc
|
A Senate bill
addressing the disclosure to Congress of classified “whistleblower”
information concerning the intelligence community is unconstitutional
because it would deprive the President of the opportunity
to determine how, when and under what circumstances certain
classified information should be disclosed to Members of
Congress.
A House bill addressing the same subject is constitutional
because it contains provisions that allow for the exercise
of the President's constitutional authority.
May 20, 1998 |
CONSTITUTIONALITY OF PROPOSED LIMITATIONS
ON TOBACCO INDUSTRY
tobacco_lr.
|
Congress has
the authority under the Constitution to impose significant
new regulations on tobacco companies, including (1)
restrictions on advertising and marketing of tobacco
products that are tailored to prevent access to advertising
by minors; (2) contingent monetary exactions, to be
collected from tobacco companies if tobacco use by
minors fails to meet prescribed targets; and (3) requirements
that companies disclose certain documents to the public
and to federal regulators.
Consent by the tobacco companies to increased federal regulation,
which those companies might grant in order to qualify for
federally prescribed limits on liability, would permit Congress
to establish additional restrictions on tobacco advertising
that it could not impose directly.
May 13, 1998 |
LEGAL AUTHORITY OF EXECUTIVE OFFICE
OF THE PRESIDENT TO REQUIRE INDEPENDENT AGENCIES TO CONDUCT
BACKBROUND CHECKS OF NONCAREER SES PERSONNEL CANDIDATES
ses004
|
No office or agency
within the Executive Office of the President may require
independent agencies to conduct certain background
checks of candidates for noncareer Senior Executive
Service positions.
April 30, 1998 |
COVERAGE ISSUES UNDER THE INDIAN
SELF-DETERMINATION ACT
isdafin |
The 1990 amendment to the Indian Self-Determination and Education
Asistance Act of 1975 covers only those torts for which
the Federal Tort claims Act waives the sovereign immunity
of the United States.
The 1990 amendment does not authorize or otherwise address
representation of tribes or tribal employees who are sued
in their individual capacities for constitutional torts.
April 22, 1998 |
POSSIBLE BASES OF JURISDICTION FOR
THE DEPARTMENT OF JUSTICE TO INVESTIGATE MATTERS RELATING
TO THE ASSASSINATION OF MARTIN LUTHER KING, JR.
mlkjurfnl |
The Department of Justice may conduct an investigation relating
to the assassination of Martin Luther King, Jr., to
investigate the commission of federal crimes for which
the applicable statute of limitations has run, in order
to establish the facts of the crime, independent of
whether such facts may lead to a prosecution.
April 20, 1998 |
APPLICATION OF THE DOUBLE JEOPARDY
CLAUSE TO DISGORGEMENT ORDERS UNDER THE FEDERAL TRADE COMMISSION
ACT
disgorgement |
In a civil suit brought by the Federal Trade Commission challenging
unfair trade practices, the Double Jeopardy Clause
of the Fifth Amendment is not implicated by a judgment
requiring restitution and ordering that, in the event
restitution is impracticable, the defendant pay money
to the United States Treasury.
April 9, 1998 |
INTERPRETATION OF PHRASE "RECOMMENDATION
THAT FUNDS BE PUT TO BETTER USE" IN INSPECTOR GENERAL ACT
fbuop2 |
Although it is a close question, the better interpretation of
the Inspector General Act is that Congress did not
intend to limit the phrase
"recommendation that funds be put to better use" to only
those audit recommendations that achieve identifiable monetary
savings.
March 20, 1998 |
THE VACANCIES ACT
vacan_tes
|
The Vacancies
Act is not the exclusive authority for temporarily
assigning the duties of a Senate-confirmed office.
Statutes vesting an agency's powers in the agency head
and allowing delegation to subordinate officials also
may be used to assign, on an interim basis, the duties
of certain vacant Senate-confirmed offices.
March 18, 1998 |
APPLICABILITY OF 18 U.S.C. § 431
TO LIMITED PARTNERSHIP INTERESTS IN GOVERNMENT LEASES UNDER
PROPOSED
MODIFIED TRANSACTION
Leaseop2
|
A modified version
of the proposed real estate transaction described in
the February 17, 1998 opinion that gives the blind
trusts no interest in any government contracts is permissible
under 18 U.S.C. § 431.
March 13, 1998 |
APPLICABILITY OF 18 U.S.C. §§ 431-433
TO LIMITED PARTNERSHIP INTERESTS IN GOVERNMENT LEASES UNDER
PROPOSED TRANSACTION
Lease6
|
The interests
of two Members of Congress under a proposed real estate
transaction involving limited partnership interests
in government leases would fall within the prohibition
of 18 U.S.C. § 431.
February 17, 1998 |
REIMBURSEMENT OF EXPENSES UNDER
5 U.S.C. §
5503(a)
Recess
|
5 U.S.C.
§ 5503(a) does not prohibit individuals reappointed
to the Board of Directors of the Civil Liberties Public Education
Fund during a congressional recess from receiving reimbursement
for travel, subsistence, and other necessary expenses associated
with performing their functions.
February 2, 1998 |
STATUTE OF LIMITATIONS AND SETTLEMENT
OF EQUAL CREDIT OPPORTUNITY ACT DISCRIMINATION CLAIMS AGAINST
THE DEPARTMENT OF AGRICULTURE
usdafinl
|
The Attorney
General may not waive the statute of limitations in
the litigation or compromise of pending claims against
theUnited States.
Absent a specific provision to the contrary, a statute of
limitations on civil actions also should apply to administrative
settlements of claims arising under that statute pursuant
to 31 U.S.C. § 3702.
31 U.S.C. § 3702 does not authorize USDA to pay compensatory
damages in an administrative settlement of an ECOA claim
if ECOA's two year statute of limitations has run.
Filing an administrative claim with USDA does not toll ECOA's
statute of limitations.
ECOA's statute of limitations is, in appropriate circumstances,
subject to the doctrines of equitable tolling and equitable
estoppel.
January 29, 1998 |
18 U.S.C. §
203 AND CONTINGENT INTERESTS IN EXPENSES RECOVERABLE IN LITIGATION
AGAINST THE UNITED STATES
govservice98
|
18 U.S.C.
§ 203 does not prohibit a prospective government officer
from maintaining upon his entry into government service a
contingent interest in expenses recoverable in litigation
involving the United States.
January 28, 1998 |
