Opinions

Opinions

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Title Headnotes
Participation by Processor-Owned Catcher Vessels in Inshore Cooperatives Under the American Fisheries Act of 1998

Section 210(b) of the American Fisheries Act of 1998 permits catcher vessels owned by shoreside processors to participate in AFA-authorized fishery cooperatives.

Tribal Restrictions on Sharing of Indigenous Knowledge on Uses of Biological Resources

The Indian Civil Rights Act, rather than the federal Constitution, limits the power of an Indian tribe vis-à-vis its members. In interpreting provisions of the ICRA, it is appropriate to look to precedents under analogous constitutional provisions constraining federal and state action, although particular facts about tribal structure and traditions may be relevant to the analysis.

In some factual circumstances, a tribal ordinance prohibiting members from sharing, with researchers or others outside the tribe, information on possible commercial uses of biological resources would raise concerns under the free speech provision of the ICRA. The legality of such an ordinance would depend on a number of factors including how widely known the information is; whether those who hold the information have a particular relationship of trust with the tribe; the magnitude of the tribal interest underlying the tribe’s effort not to disclose the information; and whether the information can be viewed as tribal property under an intellectual property regime that is otherwise consistent with applicable law.

Appointment of a Senate-Confirmed Nominee

The President is not legally obligated to appoint a nominee to whom the Senate has given its advice and consent. Until the President takes the final public act necessary to complete the appointment, which in the case of a Senate-confirmed official is customarily evidenced by the President’s signing the commission, the President retains full discretion not to appoint the nominee.

Proposed Change in EEOC Regulations Concerning Right-to-Sue Notices for Public Sector Employees

The Equal Employment Opportunity Commission proposal to amend its procedural regulations to allow the Commission to issue a right-to-sue notice where it has failed to make a reasonable cause determination within 180 days after the filing of a charge against a state or local governmental entity is not permissible under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990.

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.

Assertion of Executive Privilege With Respect to Clemency Decision

Executive privilege may properly be asserted in response to a congressional subpoena seeking documents and testimony concerning the deliberations in connection with President’s decision to offer clemency to sixteen individuals.

Executive privilege may properly be asserted in response to a congressional subpoena seeking testimony by the Counsel to the President concerning the performance of official duties on the basis that the Counsel serves as an immediate adviser to the President and is therefore immune from compelled congressional testimony.

Applicability of 18 U.S.C. § 219 to Representative Members of Federal Advisory Committees

Representative members of federal advisory committees—i.e., members who are chosen only to present the views of a private interest—are not “public officials” covered by 18 U.S.C. § 219.

Office of Personnel Management Petitions for Reconsideration of Non-Precedential Merit Systems Protection Board Decisions

The Director of the Office of Personnel Management is authorized to petition the Merit Systems Protection Board to reconsider a non-precedential decision of the Board only if the Director concludes that such decision has a substantial impact on a civil service law, rule, regulation, or policy directive.

Restrictions on Travel by Voice of America Correspondents

The Secretary of State and Chiefs of Mission may restrict travel by Voice of America correspondents in foreign countries in order to protect their safety, but only under conditions ensuring, to the greatest extent possible, the independence of VOA correspondents.

Internal Revenue Service Document Request to Department of Defense

The Defense Contract Audit Agency is not under a legal obligation, imposed by 26 U.S.C. § 7602(a), to comply with an Internal Revenue Service request for documents in its possession.

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