Opinions

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Title Headnotes
Whether the Millennium Challenge Corporation Should Be Considered an “Agency” for Purposes of the Open Meeting Requirements of the Sunshine Act

The Millennium Challenge Corporation is not an “agency” for purposes of the open meeting requirements of the Sunshine Act.

Availability of Appropriations for Social Security Administration Grant Programs Following the Expiration of Authorizations of Appropriations

Notwithstanding the expiration of the specific authorizations of appropriations for the Work Incentives Planning and Assistance program and the Protection and Advocacy for Beneficiaries of Social Security program, the appropriation for administrative expenses of the Social Security Administration remains available to fund those two grant programs. When an agency has legal authority to administer a program and appropriated funds are available for that purpose, the absence or expiration of an authorization of appropriations does not prevent the agency from expending funds on the program unless such a restriction is imposed by statute.

Whether the Peace Corps Director May Certify Peace Corps Response Volunteers for Noncompetitive Eligibility for Federal Employment Under Executive Order 11103

Under Executive Order 11103, which describes a “full term of service” as “approximately two years,” the Director of the Peace Corps may not issue certificates of satisfactory service to volunteers in the Peace Corps Response program (“PCRVs”) who serve between three and twelve months.

The Director may not issue certificates of satisfactory service to PCRVs under the exception in Executive Order 11103 for those who do not complete a full term “due to circumstances beyond their control.”

Residence Requirement for Assistant United States Attorneys Under 28 U.S.C. § 545(a)

Under 28 U.S.C. § 545(a), Assistant United States Attorneys must physically reside in or within 25 miles of the district that they serve.

Whether the United States Department of Labor Has the Authority to Control the Disclosure of Federal Employee Compensation Act Records Held by the United States Postal Service

The Federal Employee Compensation Act gives the Department of Labor the authority to control and limit the disclosure of FECA records held by the United States Postal Service, and DOL’s FECA regulations prohibit USPS from disclosing FECA records in a manner inconsistent with DOL’s Privacy Act routine uses.

The Labor Department’s regulatory regime for FECA records is consistent with and furthers the purposes of the Privacy Act.

Neither the Postal Reorganization Act nor the National Labor Relations Act authorizes USPS to control the disclosure of FECA records.

Whether Individuals May Be Required to Provide Basic Identifying Information in Order to Access the Financial Disclosure Reports Made Available on Agency Websites During the Period Governed by Section 11(a) of the STOCK Act

A procedure under which prospective viewers are required to provide basic identifying information similar to that described in section 105(b)(2) of the Ethics in Government Act in order to access financial disclosure reports made available under section 11(a) of the Stop Trading on Congressional Knowledge Act is consistent with both these statutes.

This procedure may be implemented by Executive Branch agencies at the direction of the Office of Government Ethics, pursuant to its authority under section 402 of the Ethics in Government Act to prescribe procedures governing the public availability of financial disclosure reports.

The interim regime established by section 11(a) of the Stop Trading on Congressional Knowledge Act terminates upon implementation of the permanent public disclosure system on the Office of Government Ethics website required by section 11(b). Section 11(b)(2) makes clear that viewers may not be required to provide identifying information in order to view reports made available through that system.

Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation Into Operation Fast and Furious

Executive privilege may properly be asserted in response to a congressional subpoena seeking internal Department of Justice documents generated in the course of the deliberative process concerning the Department’s response to congressional and related media inquiries into Operation Fast and Furious.

Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031

Under 42 U.S.C. § 13031—a provision of the Victims of Child Abuse Act of 1990—all covered professionals who learn of suspected child abuse while engaged in enumerated activities and professions on federal land or in federal facilities must report that abuse, regardless of where the suspected victim is cared for or resides.

The fact that a patient has viewed child pornography may “give reason to suspect that a child has suffered an incident of child abuse” under the statute, and a covered professional is not relieved of an obligation to report the possible abuse simply because neither the covered professional nor the patient knows the identity of the child depicted in the pornography.

Whether Reservists Who Otherwise Qualify for Leave Under Both 5 U.S.C. § 6323(a) and 5 U.S.C. § 6323(b) Must Exhaust Available Leave Under Section 6323(b) Before Taking Leave Under Section 6323(a)

A reservist who performs military service that qualifies for leave under both 5 U.S.C. §§ 6323(a) and 6323(b) may elect to take leave under section 6323(a) without first using all of his or her available leave under section 6323(b).

The Anti-Deficiency Act Implications of Consent by Government Employees to Online Terms of Service Agreements Containing Open-Ended Indemnification Clauses

Traditional principles of contract law govern the standard for consent to an online terms of service agreement, and, as a result, consent to such an agreement turns on whether the web user had reasonable notice of and manifested assent to the online agreement.

A government employee with actual authority to contract on behalf of the United States violates the Anti-Deficiency Act by entering into an unrestricted, open-ended indemnification agreement on behalf of the government.

A government employee who lacks authority to contract on behalf of the United States does not violate the Anti-Deficiency Act by consenting to an agreement, including an agreement containing an unrestricted, open-ended indemnification clause, because no binding obligation on the government was incurred.

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