Opinions

Opinions

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Title Headnotes
Application of Consumer Credit Reporting Reform Act of 1996 to Presidential Nomination and Appointment Process

Section 2403(b)(3) of the Consumer Credit Reporting Reform Act of 1996, which requires persons “using a consumer report for employment purposes” to notify the consumer prior to taking any “adverse action” based on the report, does not apply to the process used by the President in considering individuals for nomination and appointment.

Reappointment of a Retired Judge to the Court of Federal Claims

The President may nominate and, subject to the advice and consent of the Senate, appoint to the U.S. Court of Federal Claims an individual who has previously retired from that Court and who is receiving a retirement annuity as a senior judge. Upon assumption of active judicial service, the judge must forfeit the retirement annuity for the duration of the service.

Applicability of 18 U.S.C. § 209 to Acceptance by FBI Employees of Benefits Under the “Make a Dream Come True” Program

The criminal prohibition on supplementation of salary, 18 U.S.C. § 209, does not prohibit Federal Bureau of Investigation employees from receiving benefits under the Society of Former Special Agents of the FBI’s “Make a Dream Come True” Program.

Funds Available for Payment of Natural Resource Damages Under the Oil Pollution Act of 1990

The President, acting through the Department of Transportation, is authorized to use the Oil Spill Liability Trust Fund to pay the claims of Natural Resource Trustees for uncompensated natural resource damages in accordance with section 1013 of the Oil Pollution Act of 1990, without the need for further enactment of appropriations.

Authority to Investigate Federal Aviation Administration Employee Complaints Alleging Reprisal for Whistleblowing

The Office of Special Counsel lacks authority to investigate complaints brought by Federal Aviation Administration employees alleging reprisals against them in response to whistleblowing activity.

Applicability of Emoluments Clause to “Representative” Members of Advisory Committees

The Emoluments Clause of the Constitution does not apply to “representative” members of advisory committees, that is, members who are chosen to present the views of private organizations and interests.

Disclosure of Grand Jury Material to the Intelligence Community

Grand jury material subject to the requirements of Rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed to agencies in the Intelligence Community pursuant to Rule 6(e) insofar as necessary to assist government attorneys in performing their duties to enforce federal criminal law, but may not, under Rule 6(e), be used by the recipient agencies for other purposes, including intelligence purposes.

In circumstances where there is a compelling necessity for grand jury material to be made available to the President in furtherance of his constitutional responsibilities over foreign affairs and national defense, and where the President has authorized the provision of such material to the Intelligence Community, we believe that a court should and would authorize such disclosure outside the provisions of Rule 6(e), on the basis of Article II of the Constitution and separation of powers principles. Indeed, in such compelling circumstances, a constitutionally necessitated disclosure could properly be made by attorneys for the Government even without prior court approval.

Use of General Agency Appropriations to Purchase Employee Business Cards

Nothing in the Omnibus Consolidated Appropriations Act of 1997 expressly provides for, or prohibits, the expenditure of appropriations of the General Services Administration for the purchase of employee business cards.

In the absence of a contrary provision or limitation in its appropriations act or other applicable legislation, GSA may lawfully obligate a general or lump-sum appropriation for the purchase of business cards for suitable mission-related use by GSA employees.

Depending upon the particular purpose for which they are to be used, GSA’s purchases of business cards for its employees may be chargeable either to its limited appropriation for “reception and recreation expenses” or to its general appropriation.

Applicability of Section 514 of the 1997 Education Appropriations Act to Post-Secondary Student Aid Programs

Section 514 of the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act of 1997, which bars the provision of appropriated funds, by contract or grant, to any institution of higher education that denies campus access to military recruiters or Reserve Officer Training Corps representatives, applies to so-called “campus-based” student aid programs, which involve grants to educational entities, but does not apply to direct aid programs, which involve grants to students rather than to educational entities.

Applicability of 3 U.S.C. § 112 to Detailees Supporting the President’s Initiative on Race

3 U.S C. § 112 does not apply to the details of employees to support the President’s Initiative on Race.

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