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2001
2001-January-19

NOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement

Members of the NOAA Commissioned Corps may constitute qualified employees eligible for professional liability insurance cost reimbursement under a federal appropriations statute, if they otherwise satisfy the statutory definition for “law enforcement officer,” “supervisor,” or “management official.” 

2001-January-19

Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux

Congress intended the term “interest” in title VI of the Water Resources Development Act of 1999 to have its usual and customary meaning: the coupon rate of the debt obligation.

The universe of “available obligations” under title VI of the Water Resources Development Act of 1999 includes obligations of government corporations and government-sponsored entities whose charter statutes provide that their obligations are lawful investments for federal trust funds.

The fiduciary duty owed pursuant to a federal trust fund is defined and limited by the terms of the statute creating the trust.

2001-January-19

General Services Administration Use of Government Funds for Advertising

Section 632 of the Treasury, Postal Service, Executive Office of the President, and General Government Appropriations Act of 2000, which prohibits the use of appropriated funds for “publicity or propaganda purposes,” does not prohibit the General Services Administration from using appropriated funds to support a reasonable and carefully-controlled advertising campaign that serves the goal of informing other federal agencies about the products and services it offers.

The principles set forth in some opinions of the Comptroller General addressing limitations on advertising by federal agencies beyond the “publicity or propaganda” rider would not prohibit the GSA’s advertisements to other agencies.

2001-January-19

Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation

Any expenditure of funds in violation of a condition or internal cap in an appropriations act would generally constitute a violation of the Antideficiency Act.

2001-January-18

Authority of the Office of Government Ethics to Issue Touhy Regulations

The Office of Government Ethics may not issue Touhy regulations pursuant to 5 U.S.C. § 301 because OGE is not an “executive department” within the meaning of section 301.

OGE may issue Touhy regulations, insofar as they concern the production of agency records, pursuant to 44 U.S.C. § 3102.

OGE may issue regulations concerning the appearance of agency employees as witnesses on official matters, pursuant to the implied authority of OGE’s organic statute, 5 U.S.C. app. § 401.

2001-January-17

Reimbursing Transition-Related Expenses Incurred Before the Administrator of General Services Ascertained Who Were the Apparent Successful Candidates for the Office of President and Vice President

The General Services Administration can reimburse the Bush/Cheney transition for legitimate transition-related expenses, as contemplated by the Presidential Transition Act of 1963, that were incurred after the general election on November 7, 2000 but prior to December 14, 2000, when the Administrator of GSA ascertained that George W. Bush and Richard Cheney were the apparent successful candidates for the office of President and Vice President.

2000
2000-December-22

Whether the President May Have Access to Grand Jury Material in the Course of Exercising His Authority to Grant Pardons

The President, in the exercise of his pardon authonty and responsibilities under Article II, Section 2, Clause 1 of the Constitution, may request that the Pardon Attorney include grand jury information in any recommendation the Attorney may make in connection with a pardon application if the President determines that his need for such information in considering that application outweighs the confidentiality interests embodied in Rule 6(e) of the Federal Rules of Criminal Procedure.

The prohibition in Rule 6(e) cannot constitutionally be applied to prevent the President from obtaining grand jury information already in the possession of the executive branch when the President determines that, for purposes of making a clemency decision, his need for that information outweighs the confidentiality interests embodied in Rule 6(e).

2000-December-19

Authorization for Continuing Hostilities in Kosovo

Pub. L. No. 106-31, the emergency supplemental appropriation for military operations in Kosovo, constituted authorization for continuing hostilities after the expiration of sixty days under section 5(b) of the War Powers Resolution.

2000-November-28

Authority of the General Services Administration to Provide Assistance to Transition Teams of Two Presidential Candidates

The Presidential Transition Act of 1963, with certain limited exceptions, authorizes the Administrator of the Genera1 Services Administration to provide transition assistance only for those services and facilities necessary to assist the transition of the “President-elect” and the “Vice-President-elect,” as those terms are defined in the Act. Since there cannot be more than one “President-elect” and one “Vice-President-elect” under the Act, the Act does not authorize the Administrator to provide transition assistance to the transition teams of more than one presidential candidate.

2000-November-27

Payment of Attorney’s Fees in Litigation Involving Successful Challenges to Federal Agency Action Arising Under the Administrative Procedure Act and the Citizen-Suit Provisions of the Endangered Species Act

For purposes of settling attorney’s fees claims in a case arising under both section 10 of the Administrative Procedure Act and the citizen-suit provisions of the Endangered Species Act, federal litigators, in allocating hours and costs between the APA-Equal Access to Justice Act and ESA claims, should subordinate EAJA section 2412(d) to ESA section 11(g)(4). Under this approach, hours and costs necessary to both counts should be assigned to the ESA claim for attorney’s fees purposes, leaving only the hours and costs necessary only to the APA claim to be paid under EAJA.


Updated: April 2014