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Opinions

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Title Headnotes
Definition of Torture Under 18 U.S.C. §§ 2340–2340A

This opinion interprets the federal criminal prohibition against torture codified at 18 U.S.C. §§ 2340–2340A. It supersedes in its entirety the August 1, 2002 opinion of this Office entitled Standards of Conduct under 18 U.S.C. §§ 2340–2340A.

That statute prohibits conduct “specifically intended to inflict severe physical or mental pain or suffering.” This opinion concludes that “severe” pain under the statute is not limited to “excruciating or agonizing” pain or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.”

The statute also prohibits certain conduct specifically intended to cause “severe physical suffering” distinct from “severe physical pain.”

Political Balance Requirement for the Civil Rights Commission

In appointing a new member to the United States Commission on Civil Rights, in order to comply with the statutory requirement that “[n]ot more than 4 of the members shall at any one time be of the same political party,” the President should look to the party affiliation of the other members at the time the new member is appointed.

Terms of Members of the Civil Rights Commission

The six-year term of a member of the United States Commission on Civil Rights runs from the date on which his or her predecessor’s term ends, not from the date of the member’s appointment.

Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools

Section 504 of the Rehabilitation Act generally applies to tribally controlled schools that receive federal financial assistance from the Department of Justice.

Use of Appropriations to Pay Travel Expenses of International Trade Administration Fellows

The payment of travel expenses for International Trade Administration fellows is barred by 31 U.S.C. § 1345 because the proposed ITA fellowship program that would bring representatives from various countries to the United States would constitute a “meeting” within the meaning of section 1345.

Legality of EEOC’s Class Action Regulations

The Office of Legal Counsel has the authority to resolve the legal questions the Postal Service raised with respect to the Equal Employment Opportunity Commission’s class action regulations.

The Equal Employment Opportunity Commission’s class action regulations applicable to administrative complaints against federal government agencies are not contrary to Title VII in the manners suggested by the United States Postal Service: the regulations do not purport to prevent claimants from filing actions in federal court; they do not frustrate the statutory exhaustion requirement; and they do not forestall the running of the limitations period.

Authority of HUD’s Chief Financial Officer to Submit Final Reports on Violations of Appropriations Laws

The Consolidated Appropriations Resolution for Fiscal Year 2003 requires the Chief Financial Officer of the Department of Housing and Urban Development to report to the President and Congress on violations by the agency of the Anti-Deficiency Act and other appropriations laws concerning expenditures, but the CFO must first submit his reports to the Secretary of HUD for review and approval.

Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees

Although flight privileges generally do not require disqualification under 18 U.S.C. § 208 from all matters involving the relevant air carrier, a Federal Aviation Administration employee who holds such flight privileges must disqualify him or herself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier’s ability to honor the employee’s flight privileges.

An employee with flight privileges and the airline that provided them have a “covered relationship” that must be analyzed under an Office of Government Ethics regulation (5 C.F.R. § 2635.502) to determine whether the employee’s participating in a matter involving that airline would create an “appearance problem.”  The regulation entrusts the agency and the employee to make that determination based on the facts of a particular case.

Although flight privileges could constitute a “payment” within the meaning of another OGE regulation (5 C.F.R. § 2635.503), and therefore must be analyzed under the regulation, they do not constitute an “extraordinary payment” under the described circumstances.

Flight privileges are not a type of interest that would qualify as “stock” or “any other securities interest” under a Department of Transportation regulation (5 C.F.R. § 6001.104(b)) that supplements the OGE impartiality regulations.

Requirement That “Private Citizens” Be Appointed From “Private Life” to the National Council for the Humanities

Because state and local public officials, including a county commissioner, are not “private citizens” who would be appointed “from private life” within the ordinary meaning of those terms in 20 U.S.C. § 957(b), such officials are disqualified from appointment to the National Council for the Humanities.

Whether the Second Amendment Secures an Individual Right

The Second Amendment secures a right of individuals generally, not a right of states or a right restricted to persons serving in militias.

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