|02/11/2008||Payment of Back Wages to Alien Physicians Hired Under the H-1B Visa Program||
The statute authorizing the H-1B visa program does not waive the federal government’s sovereign immunity. Therefore, an administrative award of back wages to alien physicians hired by the Department of Veterans Affairs under the program is barred by sovereign immunity.
|01/29/2008||Constitutionality of the Direct Reporting Requirement in Section 802(e)(1) of the Implementing Recommendations of the 9/11 Commission Act of 2007||
Section 802(e)(1) of the Implementing Recommendations of the 9/11 Commission Act of 2007 does not prohibit DHS or OMB officials from reviewing, in accordance with established Executive Branch review and clearance procedures, the DHS Chief Privacy Officer’s draft section 802 reports before the reports are transmitted to Congress.
Section 802(e)(1) is best interpreted not to prohibit DHS and OMB officials from commenting on a draft CPO report where the CPO is permitted to, and in fact does, transmit to Congress a final report that does not reflect the comments or amendments from such officials.
Section 802(e)(1)’s direct reporting requirement need not be enforced in circumstances where its application would require the CPO to ignore the results of the President’s review, through DHS and OMB, of a particular report. In such circumstances, the statute must yield to the President’s exercise of his constitutional authority to supervise subordinate Executive Branch officers and their communications with Congress.
|01/16/2008||Constitutionality of Federal Government Efforts in Contracting With Women-Owned Businesses||
This statement presents the Justice Department’s views on the federal government’s efforts to contract with women-owned businesses in a manner consistent with the Constitution and federal statutes. Because the Justice Department’s position on federal contracting programs that employ gender preferences is based on constitutional and legal standards that are not specific to the program addressed by the recently published Small Business Administration rule, the statement focuses on the legal standards that govern the Department’s approach to such programs generally.
|12/04/2007||Term of the Commissioner of Internal Revenue||
Under 26 U.S.C. § 7803, the five-year term of the Commissioner of Internal Revenue runs from the date of appointment and is not calculated from the expiration of his predecessor’s term.
|10/23/2007||Application of 18 U.S.C. § 207 to Former CIA Officials’ Communications With CIA Employees on Detail to Other Agencies||
The prohibition in 18 U.S.C. § 207(c), under which a former high level official, in the year after his departure, may not make “any communication to or appearance before any officer or employee” of his former agency, would apply if former CIA officials make communications to or appearances before CIA employees who are on detail to other agencies.
|10/16/2007||Whether the Defense of Marriage Act Precludes the Nonbiological Child of a Member of a Vermont Civil Union From Qualifying for Child’s Insurance Benefits Under the Social Security Act||
The Defense of Marriage Act would not prevent the non-biological child of a partner in a Vermont civil union from receiving child’s insurance benefits under the Social Security Act.
|10/16/2007||Responsibility of Agencies to Pay Attorney’s Fee Awards Under the Equal Access to Justice Act||
The judgment of attorney’s fees and expenses entered against the United States in Cienega Gardens v. United States cannot be paid out of the Judgment Fund because the Equal Access to Justice Act provides for payment.
Pursuant to EAJA, the Department of Housing and Urban Development must pay the award. HUD would be the “agency over which the [plaintiffs] prevail[ed]” under EAJA because it administered the federal program that was the subject of the litigation.
|10/16/2007||Rate of Accrual of Annual Leave by a Civilian Employee Appointed While on Terminal Leave Pending Retirement From One of the Uniformed Services||
A member of a uniformed service appointed to a civilian position while on terminal leave pending retirement from the service is entitled to credit for his years of active military service only for the duration of his terminal leave.
Once the employee retires from the uniformed service, he no longer is entitled to credit for his years of active military service unless he satisfies certain statutory exceptions detailed in 5 U.S.C. § 6303(a) or (e). The employee’s leave-accrual rate must be recalculated upon his retirement to reflect his reduced years of creditable service.
|10/10/2007||Department of Justice Authority to Represent the Secretary of Housing and Urban Development in Certain Potential Suits||
The Department of Justice has statutory authority to represent the Secretary of Housing and Urban Development in suits that may arise from his decision to exercise his authority under the United States Housing Act of 1937 to override certain state civil service protections that would otherwise apply to employees of the Housing Authority of New Orleans.
|09/17/2007||Authority of the President to Name an Acting Attorney General||
The President may designate an Acting Attorney General under the Vacancies Reform Act, even if an officer of the Department of Justice otherwise could act under 28 U.S.C. § 508, which deals with succession to the office of the Attorney General.