Opinions
Propriety of Asserting a Governmental Privilege in Response to a Court Order
Both the common law governmental pnvilege and the constitutionally based executive privilege may be asserted to protect certain documents reflecting the deliberation of close presidential advisers from disclosure in response to a court order.
Presidential Authority to Adjust Ferroalloy Imports Under § 232(b) of the TVade Expansion Act of 1962
The President has authority to upgrade two ferroalloys currently held in the National Defense Stockpile, and remove one of these ferroalloys from the Generalized System of Preferences established under the Trade Act of 1974, in response to a “national security” finding under § 232(b) of the Trade Expansion Act of 1962, 19 U.S.C. § 1862(b). This authority stems not from § 232(b) itself, but from separate and independent statutory schemes.
The above-described actions will satisfy the President’s obligation under § 232(b) to take such actions as are necessary to “adjust imports” in responding to a threat to the national security.
Continuation of Agency Activities During a Lapse in Both Authorization and Appropriation
During a lapse in both an agency’s authorization and its appropriation, activities may continue only to the extent they were authorized prior to the enactment of any specific lapsed authorization, and only to the extent they fit within the “emergency” exception to the Antideficiency Act.
Establishment of the President’s Council for International Youth Exchange
Proposed establishment of the President’s Council on International Youth Exchange (Council) within the United States Information Agency (USIA), for the purpose of soliciting funds from the private sector for the USIA’s youth exchange programs, is generally permissible, although the Council’s activities would be subject to certain limitations and its continued operation after a year would depend upon a specific congressional appropriation.
Under the Fulbnght-Hays Act, employees of the USIA are permitted actively to solicit private contributions to support the USIA’s exchange programs. However, under 5 U.S.C. § 3107, any publicity in this connection would have to be carefully tailored to further only the USIA’s fundraising activities and not generally to aggrandize the USIA or its officials, in accordance with guidelines of the General Accounting Office.
Under 31 U.S.C. § 673, creation of the Council must be “authorized by law” in order for public funds to be used for its expenses or for USIA employees to assist in its operation. While § 673 does not require specific statutory authorization for the establishment of government councils and commissions, it does require that such entities and their functions be authorized “in a general way” by law. Whether the Council meets this test may depend upon its size and functions.
Under the Russell Amendment, 31 U.S.C. § 696, non-statutory councils and commissions which are vested with authonty to take substantive action on the government’s behalf must receive specific budgetary support from Congress within a year of their establishment in order to continue operating beyond that date.
The functions of the proposed Council in connection with fundraising and advising activities, as well as its proposed relationship with the USIA, would be such as to require that its members be made employees of the federal government.
Federal Bankruptcy Jurisdiction After October 4, 1982
The Supreme Court’s ruling in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), invalidated those parts of the Bankruptcy Act of 1978 which gave power to non-Article III bankruptcy judges, but left its grant of jurisdiction to the district courts intact.
The Supreme Court’s invalidation of certain jurisdictional provisions of the Bankruptcy Act of 1978 did not result in automatic revitalization of any part of the bankruptcy laws repealed in 1978. Accordingly, after the effective date of the Court’s decision, the district courts will be obliged to rely on some source of authority other than the bankruptcy laws to refer bankruptcy cases to bankruptcy judges, even for limited fact-finding purposes.
Funding of Attorney Fee Awards Against the United States Under Rule 37
Attorney fee awards may be imposed against the United States for abuse of discovery under Rule 37 of the Federal Rules of Civil Procedure, by virtue of the general waiver of sovereign immunity in 28 U.S.C. § 2412(b) (Supp. V 1981), which was intended to make the United States and private litigants equally liable for a fee award based on the common law or on an applicable fee-shifting statute.
Rule 37 by itself could not provide sufficient authority for a court to award attorney fees against the United States; the requisite waiver of sovereign immunity cannot be accomplished by a courtmade rule, but only by explicit legislative action.
A judgment awarding attorney fees against the United States under authority of 28 U.S.C. § 2412(b) is ordinarily paid from the judgment fund. See 28 U.S.C. § 2412(c)(2). However, where a fee award is based on a finding of bad faith on the part of a government agency, as is the case here, it must be paid from the agency's general appropriation.
Exercise of Transfer Authority Under § 110 of H.J. Res. 370
The substantive authonty granted the Secretary of the Treasury by H.J. Res. 370 to transfer funds between appropriation accounts is severable from the unconstitutional “committee approval” provision in that law, and may be exercised by the Secretary within a reasonable period after he has informed the Appropriations Committee of his intent to do so.
Presidential Appointment of the Board of Directors of Radio Free Europe/Radio Liberty, Inc.
Statute conditioning further funding of Radio Free Europe/Radio Liberty, Inc. on the President’s selection of its Board of Directors would not undermine the public purposes of this nonprofit corporation, and it is therefore unlikely that the Delaware courts would strike it down under that state’s laws.
Federal Reserve Board Policy on Bank Examiner Borrowing
The Federal Reserve Board may change its administrative policy relating to borrowing by bank examiners, to allow bank examiners to borrow or hold credit cards from lending institutions affiliated with banks or bank holding companies which they are authorized to examine. The change proposed would not result in a violation of 18 U.S.C. §§ 212 and 213.
Meeting the Uniformed Military Services’ Payroll During a Period of Lapsed Appropriations
The Secretary of Defense may meet the August 31, 1982, payroll for the uniformed military services without violating the Antideficiency Act, even though there are insufficient appropriated funds remaining in the payroll account to cover the amounts of social security and federal income tax that will be withheld simultaneously with issuance of the paychecks. This is because the due date for such withheld sums to be paid into the Treasury has been adjusted by the Secretary of the Treasury to September 30, 1982, and there is no legal obligation on the part of any employer to have in hand or to transfer to the Treasury any withheld funds until those payments are actually due.
Funds withheld from an employee’s pay are not considered legally transferred to the employee at the time a paycheck is issued, therefore, the prohibition in Article I, § 9, Clause 7, against drawing money from the Treasury in advance of an appropriation is not implicated by the timely issuance of paychecks in this case.