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Applicability of Anti-Discrimination Statutes to the Presidio Trust

The issue the Presidio Trust has presented is of the sort that Executive Order 12146 calls upon the Attorney General, and hence the Office of Legal Counsel, to resolve.

The Presidio Trust is exempt from section 717 of Title VII of the Civil Rights Act of 1964 and section 15 of the Age Discrimination in Employment Act of 1967 to the extent that these statutes apply to the appointment, compensation, duties, or termination of Trust employees, but not otherwise.


Applicability of Anti-Lottery Laws to Simultaneous Oil and Gas Leasing Procedures

The United States and its officers are not generally exempt from the anti-lottery laws, 18 U.S.C. §§ 1302 and 1304.

Although the question is not free from doubt, the legislative history and judicial construction of the anti-lottery statutes lead to the conclusion that those statutes are aimed at lotteries designed to enrich their promoters at the expense of the gambling public, and therefore do not extend to “lotteries” structured not to enrich federal coffers but for the sole purpose of distributing public leases fairly and efficiently.

Long-standing congressional acquiescence in the Interior Department’s Simultaneous Oil and Gas Leasing Procedures is a factor that must be considered in determining whether those procedures constitute an illegal lottery under §§ 1302 and 1304.


Applicability of APA Notice and Comment Procedures to Revocation of Delegation of Authority

The Secretary of Commerce may revoke a delegation to the Director of the Census without submitting the revocation to the notice and comment procedures of the Administrative Procedure Act, notwithstanding the fact that the Secretary voluntarily elected to follow those procedures in issuing the delegation.


Applicability of Appointment Provisions of the Anti-Drug Abuse Act of 1988 to Incumbent Officeholders

Provisions of the Anti-Drug Abuse Act of 1988 requiring appointment by the President with the advice and consent of the Senate for certain positions within the Department of Justice do not affect the tenure of incumbent officeholders who were appointed by the Attorney General.


Applicability of Certain Cross-Cutting Statutes to Block Grants Under the Omnibus Budget Reconciliation Act of 1981

Two block grant programs created by the Omnibus Reconciliation Act of 1981 are subject to four “cross-cutting” statutes barring discrimination on grounds of race, sex, handicap, and age, and activities funded under those programs are subject to all of the regulatory and paperwork requirements imposed by those statutes.

The language and legislative history of the four nondiscrimination laws at issue reveal that they were intended by Congress to be statements of national policy broadly applicable to all programs or activities receiving federal financial assistance. Therefore, in the absence of a clear expression of congressional intent to exempt a particular program from the obligations imposed by the four cross-cutting laws, those laws will be presumed to apply in full force.

While the general purpose of the block grant concept is to consolidate and “defederalize” prior categorical aid to state and local governments, and to lighten federal regulatory burdens, there is no suggestion in the legislative history of the two specific block grants at issue here that Congress intended to exempt programs or activities funded by them from the obligation not to discriminate embodied in the four cross-cutting statutes.


Applicability of Conflict of Interest Laws to Current and Former Executive Branch Employees Serving as Trustees in Bankruptcy Cases

Sections 203 and 205 of title 18 do not prohibit current executive branch employees from serving as bankruptcy trustees, if the United States is not a party to and lacks a “direct and substantial interest” in the particular bankruptcy proceeding. Otherwise, the sections bar current employees, except for United States Trustees and their employees, from serving as trustees in bankruptcy.

Subsections (a) and (b) of 18 U.S.C. § 207 do not prohibit former executive branch employees from serving as trustees, if the United States is not a party to and does not have a “direct and substantial interest” in the particular bankruptcy proceeding. Where the United States has such an interest, the subsections would prohibit a former executive branch employee from serving as a trustee in matters with respect to which he participated, or which fell under his supervision, while he was in governmentservice.

The narrow class of former high-level executive officials covered by 18 U.S.C. § 207(c) may not serve as trustees where the matter involved is one pending before the official’s former agency or is one in which that agency has a “direct and substantial interest.”


Applicability of Control of Paperwork Amendments of 1978 to Certain Activities of the Civil Rights Division

Control of Paperwork Amendments of 1978, which impose restrictions on federal agencies’ collection of data from educational institutions, do not apply to collection of data by the Department of Justice in connection with school desegregation litigation.


Applicability of Criminal Statutes and “Whistleblower” Legislation to Unauthorized Employee Disclosures

Several criminal statutes may be applicable to improper disclosure by a Justice Department employee of information pertaining to Federal Bureau of Investigation (FBI) undercover investigations.

Employees of the FBI are excepted from the general “whistleblower” provisions of the Civil Service Reform Act of 1978; those provisions do not in any event apply where a disclosure is specifically prohibited by law, as is apparently the case here.


Applicability of EEOC Proposed Final Rule to the Department of Veterans Affairs

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.


Applicability of Emoluments Clause to “Representative” Members of Advisory Committees

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.

Updated: April 2014