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Opinions

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Title Headnotes
United States Attorney’s Representation of Private Insurance Company in Civil Litigation

It is not improper for the Department of Justice to admit the liability of the United States on an indemnity claim in civil litigation, even if the Department previously refused to enter into a “hold harmless” agreement with the party seeking indemnity.

Representation arrangement, whereby the United States Attorney will appear as counsel both for a private insurance group and for the United States in the same civil litigation, creates no ethical difficulty, given the coincidence of both parties’ interests and their consent.

Diverting Oil Imports to United States Allies

The International Emergency Economic Powers Act would authorize the President, in order to deal with an Iranian cutoff of oil to United States allies, to require American oil companies and foreign entities they control to ship oil they acquire abroad to certain specified nations and in certain specified quantities.  While there must be a “foreign interest” in the oil for the President to invoke IEEPA’s powers, foreign interest unassociated with the nation that is creating the emergency would be sufficient.

Section 232(b) of the Trade Expansion Act would allow the President to impose a quota on oil imports for national security reasons, including reasons relating to foreign policy considerations; however, it would not give him power to direct the diversion of oil imports to other countries.

Validity of Federal Tax Lien on Civil Service Retirement Refund

Under 5 U.S.C. § 8346(a), the Internal Revenue Service is barred from attaching the civil service retirement refund of a former federal employee in order to satisfy her husband’s tax liability, notwithstanding any interest the latter individual may have in the refund under Nevada’s community property law.

Disclosure of Tax Division Files for Purposes of General Accounting Office Audit

Under 31 U.S.C. § 67 and 26 U.S.C. § 6103, the Tax Division of the Department of Justice may disclose to the General Accounting Office (GAO) case files containing tax returns and related information for the purpose of and to the extent necessary in GAO’s audit of Internal Revenue Service operations.

Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations

Statutory authority for an agency to incur obligations in advance of appropriations heed not be express, but may be implied from the specific duties that: have been imposed upon, or of authorities that have been invested in, the agency.

The “authorized by law” exception in the Antideficiency Act exempts from that Act’s general prohibition not only those obligations for which there is statutory authority, but also those obligations necessarily incident to initiatives undertaken within the President’s constitutional powers.

A government agency may employ personal services in advance of appropriations only when there is a reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property, and when there is some reasonable likelihood that either or both would be compromised in some degree by delay in the performance of the function in question.

Authority of the Federal Bureau of Investigation to Investigate Police Killings

The Federal Bureau of Investigation is not presently authorized to investigate killings of non-federal law enforcement officers which involve only violations of state law, even in response to a presidential directive.

Legality of the International Agreement with Iran and Its Implementing Executive Orders (I)

Executive orders providing for the establishment of escrow accounts with the Bank of England and the Central Bank of Algeria, directing the transfer of previously blocked Iranian government assets to those accounts, and nullifying all interests in the assets other than the interests of Iran and its agents, are within the President’s authority under the International Emergency Economic Powers Act (IEEPA). Banks and other holders of Iranian assets need not await formal vacation of court-ordered attachments before complying with transfer orders, since they as well as Executive Branch officials are relieved from any liability for actions taken in good faith in reliance on the IEEPA.

Executive order prohibiting the prosecution of any claims against Iran arising from the hostage seizure, and terminating any previously instituted judicial proceedings based on such a claim, is within the President’s authority under the IEEPA and the Hostage Act.  The order does not purport to preclude any claimant from petitioning Congress for relief in connection with his claim, nor could it constitutionally do so.

Provisions of executive order blocking property of the former Shah’s estate and that of his close relatives, and requiring all persons subject to the jurisdiction of the United States to submit to the Secretary of the Treasury information about this property to be made available to the government of Iran, are within the President’s authority under the IEEPA.  Proposed order also directs the Attorney General to assert in appropriate courts that claims of Iran for recovery of this property are not barred by foreign sovereign immunity or act of state doctrines, and asserts that all Iranian decrees relating to the former Shah and his family should be enforced in courts of the United States.

The President has constitutionally and congressionally conferred authority to enter an agreement designating the Iran-United States Claims Tribunal as the sole forum for determination of claims by the United States or its nationals against Iran, and to confer upon the Tribunal jurisdiction over claims against the United States.

 

Legality of the International Agreement with Iran and Its Implementing Executive Orders (II)

Executive orders providing for the establishment of escrow accounts with the Bank of England and the Central Bank of Algeria, directing the transfer of previously blocked Iranian government assets to those accounts, and nullifying all interests in the assets other than the interests of Iran and its agents, are within the President’s authority under the International Emergency Economic Powers Act (IEEPA). Banks and other holders of Iranian assets need not await formal vacation of court-ordered attachments before complying with transfer orders, since they as well as Executive Branch officials are relieved from any liability for actions taken in good faith in reliance on the IEEPA.

Executive order prohibiting the prosecution of any claims against Iran arising from the hostage seizure, and terminating any previously instituted judicial proceedings based on such a claim, is within the President's authority under the IEEPA and the Hostage Act. The order does not purport to preclude any claimant from petitioning Congress for relief in connection with his claim, nor could it constitutionally do so.

Provisions of executive order blocking property of the former Shah’s estate and that of his close relatives, and requiring all persons subject to the jurisdiction of the United States to submit to the Secretary of the Treasury information about this property to be made available to the government of Iran, are within the President’s authority under the IEEPA. Proposed order also directs the Attorney General to assert in appropriate courts that claims of Iran for recovery of this property are not barred by foreign sovereign immunity or act of state doctrines, and asserts that all Iranian decrees relating to the former Shah and his family should be enforced in courts of the United States.

The President has constitutionally and congressionally conferred authority to enter an agreement designating the Iran-United States Claims Tribunal as the sole forum for determination of claims by the United States or its nationals against Iran, and to confer upon the Tribunal jurisdiction over claims against the United States.

Restructuring the Relationship Between the Federal Government and Radio Free Europe/Radio Liberty

No impermissible conflict of interest arises from the practical identity of grantor and grantee of federal funds, where such an arrangement has been authorized by federal statute.

No separation of powers concern is implicated by Congress’s appropriation of funds directly to a private entity whose functions relate exclusively to the flow of information; nor does this situation raise a problem of excessive delegation of government authority to the private sector.

Presidential Memorandum Delaying Proposed and Pending Regulations

The President has authority, under Article II, § 3 of the Constitution, to direct executive agencies to postpone proposed and pending regulations for a 60-day period.

Even where a regulation has been published in final form, the Administrative Procedure Act does not require an agency to follow notice and comment procedures in connection with a temporary postponement of its effective date, since such a postponement will not generally be regarded as a rulemaking. Even if it were so regarded, an agency will in general have good cause for dispensing with notice and comment procedures where a new President is assuming office during a time of economic distress.

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