TERM OF THE COMMISSIONER OF
INTERNAL REVENUE
irs-commissioner-term-opinion120407.pdf |
Under 26 U.S.C. § 7803
(2000), the five-year term of the Commissioner of
Internal Revenue runs from the date of appointment
and is not calculated from the expiration of his
predecessor's term.
December 4, 2007 |
APPLICATION OF 18 U.S.C. § 207
TO FORMER CIA OFFICIALS’ COMMUNICATIONS WITH CIA
EMPLOYEES ON DETAIL TO OTHER AGENCIES
cia-opinion.pdf |
The prohibition in 18 U.S.C. § 207(c),
under which a former high level official, in the year
after his departure, may not make “any communication
to or appearance before any officer or employee” of
his former agency, would apply if former CIA officials
make communications to or appearances before CIA employees
who are on detail to other agencies.
October 23, 2007 |
RESPONSIBILITY OF AGENCIES
TO PAY ATTORNEY’S FEE AWARDS UNDER THE EQUAL ACCESS TO
JUSTICE ACT
cienega-gardens-final.pdf |
The judgment of attorney’s fees and expenses
entered against the United States in Cienega Gardens
v. United States cannot be paid out of the Judgment
Fund because the Equal Access to Justice Act provides
for payment.
Pursuant to EAJA, the Department of Housing and Urban
Development must pay the award. HUD would be the “agency
over which the [plaintiffs] prevail[ed]” under EAJA because
it administered the federal program that was the subject
of the litigation.
October 16, 2007 |
RATE OF ACCRUAL OF ANNUAL
LEAVE BY A CIVILIAN EMPLOYEE APPOINTED WHILE ON TERMINAL
LEAVE PENDING RETIREMENT FROM ONE OF THE UNIFORMED SERVICES
Terminal-Annual_Leave_Opinion_Publication_10162007.pdf |
A member of a uniformed
service appointed to a civilian position while on
terminal leave pending retirement from the service
is entitled to credit for his years of active military
service only for the duration of his terminal leave.
Once the employee retires from the uniformed service,
he no longer is entitled to credit for his years of
active military service unless he satisfies certain
statutory exceptions detailed in 5 U.S.C. § 6303(a)
or (e). The employee's leave-accrual rate must be recalculated
upon his retirement to reflect his reduced years of
creditable service.
October 16, 2007 |
WHETHER THE DEFENSE OF MARRIAGE
ACT PRECLUDES THE NON-BIOLOGICAL CHILD OF A MEMBER OF
A VERMONT CIVIL UNION FROM QUALIFYING FOR CHILD'S INSURANCE
BENEFITS UNDER THE SOCIAL SECURITY ACT
saadomaopinion10-16-07final.pdf |
The Defense of Marriage
Act would not prevent the non-biological child of a
partner in a Vermont civil union from receiving child's
insurance benefits under the Social Security Act.
October 16, 2007 |
DEPARTMENT OF JUSTICE AUTHORITY
TO REPRESENT THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT
IN CERTAIN POTENTIAL SUITS
hud-opinion-101007.pdf |
The Department of Justice
has statutory authority to represent the Secretary
of Housing and Urban Development in suits that may
arise from his decision to exercise his authority under
the United States Housing Act of 1937 to override certain
state civil service protections that would otherwise
apply to employees of the Housing Authority of New
Orleans.
October 10, 2007 |
AUTHORITY OF THE PRESIDENT
TO NAME AN ACTING ATTORNEY GENERAL
authority-of-the-president-name-ag-070908.pdf |
The President may
designate an Acting Attorney General under the Vacancies
Reform Act, 5 U.S.C. §§ 3345-3349d, even if an officer
of the Department otherwise could act under 28 U.S.C. § 508,
which deals with succession to the office of the
Attorney General.
September 17, 2007 |
WHETHER THE OFFICE OF ADMINISTRATION IS AN “AGENCY” FOR PURPOSES OF THE FREEDOM OF INFORMATION ACT
oaopinionfinal.pdf |
The Office of Administration, which provides administrative support to entities within the Executive Office of the President, is not an agency for purposes of the Freedom of Information Act.
August 21, 2007 |
IMMUNITY OF FORMER COUNSEL
TO THE PRESIDENT FROM COMPELLED CONGRESSIONAL TESTIMONY
miers-immunity-Opinion071007.pdf |
The former Counsel to the
President is immune from compelled congressional testimony
about matters that arose during her tenure as Counsel
to the President and that relate to her official duties
in that capacity and is not required to appear in response
to a subpoena to testify about such matters.
July 10, 2007 |
APPLICATION OF THE RELIGIOUS
FREEDOM RESTORATION ACT TO THE AWARD OF A GRANT PURSUANT
TO THE JUVENILE JUSTICE AND DELINQUENCY PREVENTION ACT
worldvision.pdf |
The Religious Freedom Restoration
Act is reasonably construed to require the Office of
Justice Programs to exempt World Vision-a religious
organization that has been awarded a grant under the
Juvenile Justice and Delinquency Prevention Act-from
the religious nondiscrimination provision in 42 U.S.C. § 3789d(c)(1).
June 29, 2007 |
ASSERTION OF EXECUTIVE PRIVILEGE
CONCERNING THE DISMISSAL AND REPLACEMENT OF U.S. ATTORNEYS
wh-executive-privilege062707.pdf |
Executive privilege may
properly be asserted over the documents and testimony
concerning the dismissal and replacement of United
States Attorneys that have been subpoenaed by congressional
committees.
June 27, 2007 |
APPLICATION OF THE EMOLUMENTS
CLAUSE TO A MEMBER OF THE FEDERAL BUREAU OF INVESTIGATION
DIRECTOR'S ADVISORY BOARD
fbi_advisory_board_opinion_061507.pdf |
A member
of the Federal Bureau of Investigation Director's
Advisory Board does not hold an "Office of Profit
or Trust" under the Emoluments Clause of the Constitution.
June 15, 2007 |
CONSTITUTIONALITY OF D.C. VOTING
RIGHTS ACT OF 2007
dcvotingrights-act-2007.pdf |
S. 1257, a bill to grant the District of Columbia
representation in the House of Representatives as
well as to provide an additional House seat for
Utah, violates the Constitution’s provisions governing
the composition and election of the United States
Congress.
May 23, 2007 |
WHEN A PRIOR CONVICTION QUALIFIES
AS A “MISDEMEANOR CRIME OF DOMESTIC VIOLENCE”
atfmcdv-opinion.pdf |
A "misdemeanor crime
of domestic violence" under 18 U.S.C. § 922(g)(9)
is limited to those offenses of which the use or
attempted use of physical force or the threatened
use of a deadly weapon is an element-that is, a
factual predicate specified by law and required
to support a conviction.
Where the legal definition of the crime at issue contains
a disjunctive element (which requires proof of only
one of multiple specified factual predicates), only
one subpart of which requires the use or attempted
use of physical force or the threatened use of a deadly
weapon, application of the prohibition in section 922(g)(9)
will turn on whether the factfinder found that the
subpart meeting the "misdemeanor crime of domestic
violence" definition had been proved (or whether the
defendant pleaded guilty to that subpart). The answer
to that question may be gleaned from the record of
conviction or the supporting record of proceedings
in the court of conviction. Police reports cannot answer
that question.
The above interpretations also govern background checks
by the Federal Bureau of Investigation for firearms
transfers under the National Instant Background Check
System, but additional materials, including police
reports, may be relied upon by the NICS for certain
limited purposes.
May 17, 2007 |
OFFICERS OF THE UNITED STATES
WITHIN THE MEANING OF THE APPOINTMENTS CLAUSE
appointmentsclausev10.pdf |
A position to which
is delegated by legal authority a portion of the
sovereign powers of the federal Government and that
is "continuing" is a federal office subject to the
Constitution's Appointments Clause. A person who
would hold such a position must be properly made
an "Officer[] of the United States" by being appointed
pursuant to the procedures specified in the Appointments
Clause.
April 16, 2007 |
USE OF APPROPRIATED FUNDS TO
PROVIDE LIGHT REFRESHMENTS TO NON-FEDERAL PARTICIPANTS
AT EPA CONFERENCES
epa-light-refreshments13.pdf |
Light refreshments are "subsistence expenses" to
which the prohibition of 31 U.S.C. § 1345 applies,
and various statutory provisions that authorize the
Environmental Protection Agency to hold meetings, conduct
training and provide grants do not satisfy the "specifically
provided by law" exception to the prohibition.
A violation of section 1345 does not, by its own force,
also violate the Anti-Deficiency Act.
April 5, 2007 |
STATUS OF PUBLIC COMPANY ACCOUNTING
OVERSIGHT BOARD UNDER 18 U.S.C. § 207(c)
pcaobopinionfinal.pdf |
A former senior employee
of the Securities and Exchange Commission communicating
with the Commission on behalf of the Public Company
Accounting Oversight Board during the year after
his service as a senior employee at the Commission
ends would not be communicating on behalf of the
United States and therefore 18 U.S.C. § 207(c) would
apply to bar such a communication.
March 30, 2007 |
LEGALITY OF ALTERNATIVE ORGAN
DONATION PRACTICES UNDER 42 U.S.C. § 274e
organtransplant.pdf |
Two alternative kidney
donation practices, in which a living donor who
is incompatible with his intended recipient donates
a kidney to a stranger in exchange for the intended
recipient's receiving a kidney from another donor
or increased priority on a waiting list, do not
violate the prohibition on transfers of organs for "valuable
consideration" in 42 U.S.C. § 274e..
March 28, 2007 |
PRESIDENTIAL SIGNING STATEMENTS
presidential-signing-stmt.pdf |
This testimony discusses the purpose and history
of presidential signing statements.
January 31, 2007 |
DAYS OF SERVICE BY SPECIAL GOVERNMENT
EMPLOYEES
sge_opinion_final.pdf |
The longstanding interpretation
of the Executive Branch that service by a special
government employee during any part of a day counts
as a full day under 18 U.S.C. §§ 203 and 205,
which impose greater conflict of interest restrictions
after a special government employee works 60 days,
is reaffirmed.
January 26, 2007 |
