Opinions
United States Assistance to Countries That Shoot Down Civil Aircraft Involved in Drug Trafficking
The Aircraft Sabotage Act of 1984 applies to the police and military personnel of foreign governments. In particular, the Act applies to the use of deadly force by such foreign governmental actors against civil aircraft in flight that are suspected of transporting illegal drugs. There is accordingly a substantial risk that United States Government officers and employees who provide flight tracking information or certain other forms of assistance to the aerial interdiction programs of foreign governments that have destroyed such aircraft, or that have announced an intent to do so, would be aiding and abetting conduct that violated the Act.
Review of 1988 Opinion Concerning the Applicability of Section 504 of the Rehabilitation Act to Individuals Infected With HIV
The 1988 Office of Legal Counsel opinion accurately describes the duties imposed by section 504 of the Rehabilitation Act with respect to individuals infected with the Human Immunodeficiency Virus.
The subsequent passage of the Americans with Disabilities Act did not alter the analysis of cases arising under the Rehabilitation Act, although an amendment to section 504 now requires reference to standards set forth in the ADA.
Application of the standards set forth under section 504 in any particular case requires consideration of current scientific understanding of HIV infection. Advances in the scientific understanding of HIV infection since 1988 may undermine some of the discussion in the 1988 opinion about the application of these standards to individual cases.
Applicability of 18 U.S.C. § 208 to Proposed Appointment of Government Official to the Board of Connie Lee
An executive branch officer or employee appointed to the Board of Directors of Connie Lee would be a “director” within the meaning of 18 U.S.C. § 208(a) and therefore would be disqualified from participating “personnally and substantially” in any “particular matter” implicating the financial interests of Connie Lee unless the conditions of subsection 208(b) are satisfied.
Prejudgment Interest Under the Back Pay Act for Refunds of Federal Insurance Contributions Act Overpayments
The Back Pay Act’s authorization of prejudgment interest does not apply to the return of a Federal Insurance Contributions Act tax overpayment.
Even if the Back Pay Act did apply to such returns, an agency’s specific exemption from liability under the Federal Insurance Contributions Act would override the provisions of the Back Pay Act.
Deputization of Members of Congress as Special Deputy U.S. Marshals
The deputization of Members of Congress as special Deputy U.S. Marshals is inconsistent with separation of powers principles and with the statutory language and historical practice governing special deputation.
Reconsideration of Applicability of the Davis-Bacon Act to the Veterans Administration’s Lease of Medical Facilities
Contrary to the view expressed in an earlier opinion of the Office of Legal Counsel, the plain language of the Davis-Bacon Act does not bar its application to a lease contract on the ground that such contracts are per se not contracts for construction. The applicability of the Davis-Bacon Act to any specific lease contract can be determined only by considering the details of the particular contract.
Authority of Department of Housing and Urban Development to Initiate Enforcement Actions Under the Fair Housing Act Against Other Executive Branch Agencies
Because substantial separation of powers concerns would be raised by construing the Fair Housing Act to authorize the Department of Housing and Urban Development to initiate enforcement proceedings against other executive branch agencies, the Act cannot be so construed unless it contains an express statement that Congress intended HUD to have such authority. Because the Act does not contain such an express statement, it does not grant HUD this authority.
There is no basis for construing the Act so that the HUD investigative and administrative process under the Act may be deemed applicable, but the judicial enforcement procedures deemed inapplicable.
Eligibility of Involuntary Wartime Relocatees to Japan for Redress Under the Civil Liberties Act of 1988
The proposed Department of Justice change in its interpretation of the Civil Liberties Act of 1988 to extend redress under the Act to minors who accompanied their parents to Japan during World War II and to adults who are able to show that their relocation to Japan during that period was involuntary is a reasonable and permissible interpretation of the statute.
Although an agency interpretation that has been modified or reversed is likely to receive less deference by a reviewing court than a consistent and contemporaneous interpretation, the fact of modification does not preclude the court from granting deference to the new interpretation.
Equitable Transfers of Forfeited Monies or Property
When the federal government makes an equitable transfer of forfeited monies or property to a state or local law enforcement agency, that transfer is more appropriately characterized as a conditional gift to the agency rather than as a formal contract between the federal government and the agency.
If the state or local agency fails to use the transferred property for law enforcement purposes, the federal government may be able to pursue restitution of the property.
MARAD Rulemaking Authority Under Cargo Preference Laws
The U.S. Maritime Administration has the authority to promulgate rules establishing mandatory uniform charter terms for the carriage of cargoes subject to the Cargo Preference Act of 1954.