| Memoranda & Opinions |
Overview of Document |
PARTICIPATION BY PROCESSOR-OWNED
CATCHER VESSELS IN INSHORE COOPERATIVES UNDER THE AMERICAN
FISHERIES ACT OF 1998
pollockopinionfinal
|
Section 210(b) of
the American Fisheries Act of 1998 permits catcher
vessels owned by shoreside processors to participate
in AFA-authorized fishery cooperatives.
December 10, 1999 |
TRIBAL RESTRICTIONS ON SHARING OF
INDIGENOUS KNOWLEDGE ON USES OF BIOLOGICAL RESOURCES
biodiv14
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The Indian Civil
Rights Act, rather than the federal Constitution, limits
the power of an Indian tribe vis-a-vis its members.
In interpreting provisions of the ICRA, it is appropriate
to look to precedents under analogous constitutional
provisions constraining federal and state action, although
particular facts about tribal structure and traditions
may be relevant to the analysis.
In some factual circumstances, a tribal ordinance prohibiting
members from sharing, with researchers or others outside
the tribe, information on possible commercial uses of biological
resources would raise concerns under the free speech provision
of the ICRA. The legality of such an ordinance would depend
on a number of factorsincluding how widely known the information
is; whether those who hold the information have a particular
relationship of trust with the tribe; the magnitude of the
tribal interest underlying the tribe's effort not to disclose
the information; and whether the information can be viewed
as tribal property under an intellectual property regime
that is otherwise consistent with applicable law.
October 12, 1999 |
APPOINTMENT OF A SENATE-CONFIRMED
NOMINEE
marbury_ltr
|
The President is
not legally obligated to appoint a nominee to whom
the Senate has given its advice and consent. Until
the President takes the final public act necessary
to complete the appointment, which in the case of a
Senate-confirmed official is customarily evidenced
by the President's signing the commission, the President
retains full discretion not to appoint the nominee.
October 12, 1999 |
PROPOSED CHANGE IN EEOC REGULATIONS
CONCERNING RIGHT-TO-SUE NOTICES FOR PUBLIC SECTOR EMPLOYEES
eeocop
|
The Equal Employment
Opportunity Commission proposal to amend its procedural
regulations to permit the Commission to issue a right-to-sue
notice where it has failed to make a reasonable cause
determination within 180 days after the filing of a
charge against a state or local governmental entity
is not permissible under Title VII of the Civil Rights
Act of 1964 or the Americans with Disabilities Act
of 1990.
October 7, 1999 |
APPLICABILITY OF EEOC PROPOSED FINAL
RULE TO THE DEPARTMENT OF VETERANS AFFAIRS
eeova
|
The Veterans' Benefits
Act is not inconsistent with the proposed Equal Employment
Opportunity Commission final rule on hearings for federal
employees' EEO complaints, and therefore the Department
of Veterans Affairs would be subject to the rule to
the same extent as other executive branch agencies.
September 28, 1999 |
ASSERTION OF EXECUTIVE PRIVILEGE
WITH RESPECT TO CLEMENCY DECISION
falnpotus
|
Executive privilege
may properly be asserted in response to a congressional
subpoena seeking documents and testimony concerning
the deliberations in connection with President's decision
to offer clemency to sixteen individuals.
Executive privilege may properly be asserted in response
to a congressional subpoena seeking testimony by the Counsel
to the President concerning the performance of official duties
on the basis that the Counsel serves as an immediate adviser
to the President and is therefore immune from compelled congressional
testimony.
September 16, 1999 |
APPLICABILITY OF 18 U.S.C. § 219
TO REPRESENTATIVE MEMBERS OF FEDERAL ADVISORY COMMITTEES
219new
|
Representative
members of federal advisory committees - i.e., members
who are chosen only to present the views of a private
interest - are not "public officials" covered by 18
U.S.C.
§ 219.
September 15, 1999 |
OFFICE OF PERSONNEL MANAGEMENT PETITIONS
FOR RECONSIDERATION OF NON_PRECEDENTIAL MERIT SYSTEMS PROTECTION
BOARD DECISIONS
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|
The Director of
the Office of Personnel Management is authorized to
petition the Merit Systems Protection Board to reconsider
a non_precedential decision of the Board if, and only
if, the Director concludes that such decision has a
substantial impact on a civil service law, rule, regulation,
or policy directive.
September 13, 1999 |
RESTRICTIONS ON TRAVEL BY VOICE OF
AMERICA CORRESPONDENTS
voabal
|
The Secretary of
State and Chiefs of Mission may restrict travel by
Voice of America correspondents in foreign countries
in order to protect their safety, but only under conditions
ensuring, to the greatest extent possible, the independence
of VOA correspondents.
September 10, 1999 |
INTERNAL REVENUE SERVICE REQUEST
FOR DOCUMENTS IN DEFENSE DEPARTMENT POSSESSION
irs_opinion
|
The Defense Contract
Audit Agency is not under a legal obligation, imposed
by 26 U.S.C. § 7602(a), to comply with an Internal
Revenue Service request for documents in its possession.
September 1, 1999 |
ELIGIBILITY OF A DUAL UNITED STATES
CITIZEN FOR A PAID POSITION WITH THE DEPARTMENT OF JUSTICE
dualcitizen
|
Section 606 of
the Treasury and General Government Appropriations
Act of 1999 does not bar the Department of Justice
from employing, in a paid position, a United States
citizen who is also a citizen of another country.
August 26, 1999 |
THE INAPPLICABILITY OF FEDERAL VACANCIES
REFORM ACT'S REPORTING OBLIGATIONS FOR PAS OFFICERS SERVING
UNDER STATUTORY HOLDOVER PROVISIONS
damusholdover
|
There is no "vacancy" within
the meaning of the Federal Vacancies Reform Act of
1998 when a presidentially appointed, Senate_confirmed
officer continues to hold a position under a statutory
holdover provision and therefore the holdover service
is not reportable under the Act.
July 30, 1999 |
TESTIMONY CONCERNING THE FEDERALISM
ACCOUNTABILITY ACT
test714a
|
Provisions of the
proposed Federalism Accountability Act that would alter
the rules under which courts determine whether Congress
has preempted state law by statute or authorized preemption
by regulation could have far reaching and unintended
consequences and should only be enacted if Congress
determines that existing preemption doctrine has systematically
frustrated congressional intent and that statutory
rules of construction would produce better results.
Provisions of the bill that would instruct courts to resolve
ambiguities in federal law in favor f preserving the authority
of the states could frustrate the intentions of Congress
and rulemaking agencies and should not be enacted.
July 14, 1999 |
AUTHORITY OF THE UNITED STATES TO
ENTER SETTLEMENTS LIMITING THE FUTURE EXERCISE OF EXECUTIVE
BRANCH DISCRETION
consent.decrees2
|
Attorney General
may enter into settlements that would limit the future
exercise of executive branch discretion when that discretion
has been conferred upon the executive branch pursuant
to statute and there exists no independent statutory
limitation on the authority of the executive branch
to so limit the future exercise of that discretion.
The Attorney General's power to enter into settlements that
would limit the future exercise of discretion that has been
conferred upon the executive branch directly by the Constitution
is constrained by the very constitutional provisions that
vest discretionary authority in the President and therefore
necessarily preclude the President from subjecting the exercise
of that discretion to the control of the other party to a
settlement or to judicial enforcement.
Article III of the Constitution does not preclude the executive
branch from entering into judicially enforceable discretion
limiting settlements as a general matter or bar federal courts
from entering consent decrees that limit executive branch
discretion whenever such decrees purport to provide broader
relief than a court could have awarded pursuant to an ordinary
injunction. Article III limitations may arise, however, when,
for example, the terms of the governmental promise are too
amorphous to be susceptible to Article III federal judicial
enforcement.
Although there may be sound policy reasons to reaffirm Attorney
General Meese's 1986 policy regulating the use of discretion
limiting settlements, the concerns that led to its adoption
do not, in general, amount to legally binding limitations
on the scope of the executive branch's power to settle litigation
in a manner that may limit the future exercise of executive
branch discretion.
June 15, 1999 |
TERM OF A MEMBER OF THE MISSISSIPPI
RIVER COMMISSION
mrc2
|
The term of a member
of the Mississippi River Commission is set by the statute
governing his office, and the term dictated by the
statute applies even though the language of his nomination,
confirmation, and commission calls for a different
term.
May 27, 1999 |
ACCESSIBILITY GUIDELINES AND FEDERAL
LEASE RENEWALS
barrieropfin2
|
The Architectural
and Transportation Barriers Compliance Board may require,
pursuant to the Architectural Barriers Act of 1968,
that buildings first leased by federal agencies after
1976 be brought into compliance with current accessibility
standards when the agency negotiates renewal of the
lease.
May 26, 1999 |
RELATIONSHIP BETWEEN ILLEGAL IMMIGRATION REFORM AND
IMMIGRANT RESPONSIBILITY ACT OF 1996 AND STATUTORY REQUIREMENT
FOR CONFIDENTIALITY OF CENSUS INFORMATION
census12 |
Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, which concerns the authority of federal, state, and local government officials and entities
to disclose to the Immigration and Naturalization Service information regarding an individual's
citizenship or immigration status, does not repeal 13 U.S.C. § 9(a), a statutory confidentiality
requirement that bars the disclosure of covered census information by census officials.
May 18, 1999
|
USMS OBLIGATION TO TAKE STEPS TO
AVOID ANTICIPATED APPROPRIATIONS DEFICIENCY
draftop5
|
Under the apportionment
provisions of the Antideficiency Act, the United States
Marshals Service has an affirmative obligation to take
steps to avoid a deficiency in its Federal Prisoner
Detention budget and any drastic curtailment of its
prisoner detention services by reducing current expenditures
and/or exploring alternative sources of funding that
would not depend upon the receipt of additional funds
from Congress.
May 11, 1999 |
WHETHER AND UNDER WHAT CIRCUMSTANCES
GOVERNMENT REPRODUCTION OF COPYRIGHTED MATERIALS IS A NONINFRINGING "FAIR
USE" UNDER SECTION 107 OF THE COPYRIGHT ACT OF 1976
pincusfinal430
|
Although government
reproduction of copyrighted material for governmental
use would in many contexts be a noninfringing fair
use under section 107 of the Copyright Act of 1976,
such government reproduction of copyrighted material
does not invariably qualify as a "fair use."
An agency that decides to negotiate a photocopying license
should seek to limit the scope of the licensing agreement
so as not to cover those photocopying practices that the
agency, in good faith, concludes are not infringing.
In order to determine whether a particular government photocopying
practice is a "fair use," the ultimate question to be answered
is whether permitting the government to continue to engage
in the practice without paying a licensing fee would stimulate
productive thought and public instruction, or yield other
societal benefits, without excessively diminishing the incentives
for creativity.
April 30, 1999 |
APPLICABILITY OF TRADE SECRETS ACT
TO INTRAGOVERNMENTAL EXCHANGE OF REGULATORY INFORMATION
ofheoopfinsent
|
The disclosure
to certain federal financial regulatory agencies of
propriety information of the Office of Federal Housing
Enterprise Oversight obtained from the finance institutions
it regulates would be "authorized by law"
within the meaning of the Trade Secrets Act and therefore
would not violate that Act's prohibitions against unauthorized
agency disclosures of trade secrets or other confidential
business information.
April 5, 1999 |
GUIDANCE ON APPLICATION OF FEDERAL VACANCIES
REFORM ACT OF 1998
finalqa
|
This memorandum
provides guidance on the application of the Federal
Vacancies Reform Act of 1998 to vacancies in Senate-confirmed
offices within the executive branch.
March 22, 1999 |
GULF WAR VETERANS HEALTH STATUTES
gulfopfind2d3
|
Section 1604 of
the Persian Gulf War Veterans Act of 1998 is constitutionally
invalid and ineffective insofar as it purports to nullify
prospectively certain described legislation that might
be enacted in the future.
Overlapping provisions of the Veterans Programs Enhancement
Act of 1998 and the Persian Gulf War Veterans Act of 1998,
although redundant and burdensome in some respects if both
statutes are given effect, are not inherently conflicting
or mutually exclusive, and therefore the provisions of both
laws must be treated as valid and effective.
March 12, 1999 |
ATTORNEY'S FEES FOR LEGAL SERVICE
PERFORMED PRIOR TO FEDERAL EMPLOYMENT
attyfee
|
18 U.S.C. § 205
prohibits a Civil Division attorney from receiving
attorney's fees for work in a case against the United
States performed prior to federal employment when the
right to payment depends on a finding of liability
and award against the United States that takes place
after the attorney's entry into federal employment.
February 11, 1999 |
APPLICABILITY OF 18 U.S.C. § 208
TO NATIONAL GAMBLING IMPACT STUDY COMMISSION
hewitt4
|
The National Gambling
Impact Study Commission is not an "independent" agency
for purposes of a criminal conflict of interest statute,
18 U.S.C. § 208.
January 26, 1999 |
APPLICATION OF 18 U.S.C. § 205
TO EMPLOYEES SERVING ON AN INTERGOVERNMENTAL PERSONNEL ACT
ASSIGNMENT
fbi205
|
A federal employee
assigned to a state or local government or other non-federal
entity under the Intergovernmental Personnel Act is
not prohibited by 18 U.S.C. § 205 from representing
the interest of the non-federal entity before the federal
government, including the employee's agency, if such
representational activity is affirmatively included
with the scope of the employee's assignment as determined
by the federal agency head.
January 11, 1999 |
APPLICABILITY OF 18 U.S.C. § 1721
TO COLLECTION OF FEE FOR STAMPED CARDS
stampedcardsfin
|
The Postal Service
may charge a fee for stamped cards in addition to the
face value of the postage without violating 18 U.S.C. § 1721.
January 07, 1999 |
