Opinions

Opinions

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Title Headnotes
Authority of USDA to Award Monetary Relief for Discrimination

The Department of Agriculture has authority to award monetary relief, attorneys’ fees, and costs to a person who has been discriminated against in a program conducted by USDA if a court could award such relief in an action by the aggrieved person. That question is controlled by whether the anti-discrimination provisions of the applicable civil rights statute apply to federal agencies, and if so, whether the statute waives the sovereign immunity of the United States against imposition of such relief.

The anti-discrimination provisions of Title VI of the Civil Rights Act of 1964 do not apply to federal agencies. Some anti-discrimination provisions in each of the other civil rights statutes addressed in the opinion do apply to federal agencies, but only one of the statutes, the Equal Credit Opportunity Act, waives sovereign immunity with respect to monetary relief, authorizing imposition of compensatory damages. The Fair Housing Act and the Rehabilitation Act do not waive immunity against monetary relief. Attorneys’ fees and costs may be awarded pursuant to the waiver of immunity contained in the Equal Access to Justice Act.

Sixth Amendment Implications of Law Enforcement Contact with Corporate Executives

Law enforcement contacts with high-ranking executives of a corporation without the presence of counsel after criminal charges have been filed against the corporation violate the corporation’s Sixth Amendment right to counsel.

No Sixth Amendment violation occurs when such law enforcement contacts with high-ranking executives occur while civil penalty proceedings are in progress against the corporation.

Whether Members of the Sentencing Commission Who Were Appointed Prior to the Enactment of a Holdover Statute May Exercise Holdover Rights Pursuant to the Statute

Statutory provisions that allow members of the United States Sentencing Commission to holdover in office after their terms have expired apply to incumbent members who were appointed prior to the enactment of the holdover statute.

Commissioners who were appointed prior to the enactment of the holdover statute may constitutionally exercise such holdover rights without violating the Appointments Clause.

Application of the Brady Act’s Criminal Penalties to State or Local Law Enforcement Officers

The criminal penalties contained in the Brady Handgun Violence Protection Act do not apply to state or local law enforcement officers in the performance of their duties under the Brady Act. Accordingly, the United States lacks the authority to prosecute state or local officials for violations of the Brady Act.

OCC Mortgage Lending Testing Program

Individuals who serve as “testers” in a proposed Office of the Comptroller of the Currency program designed to identify discriminatory lending practices by national banks would not violate any federal criminal laws if, as part of the program, they provide false information to targeted banks.

Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities

The Emoluments Clause of the Constitution does not apply in the cases of government employees offered faculty employment by a foreign public university where it can be shown that the university acts independently of the foreign state when making faculty employment decisions.

Whether the Office of the Vice President Is an “Agency” for Purposes of the Freedom of Information Act

The Office of the Vice President is not an “agency” for purposes of the Freedom of Information Act.

Denial of Public Access to Trial Exhibits in Child Pornography Prosecutions

Courts may deny public access to exhibits entered into evidence in child pornography prosecutions.

Authority for Issuing Hatch Act Regulations

The Office of Personnel Management, rather than the Office of Special Counsel, has the authority to promulgate regulations delimiting the scope and nature of permissible activities under the Hatch Act Reform Amendments of 1993.

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