Opinions

Opinions

Displaying 1 - 10 of 28
Title Headnotes
Designation of Interpol as a Public International Organization Under the International Organizations Immunities Act

The International Criminal Police Organization, INTERPOL, qualifies for designation by the President as a “public international organization” under the International Organizations Immunities Act, 22 U.S.C. § 288 (IOIA), entitled to enjoy certain privileges, exemptions, and immunities under United States law. INTERPOL is composed exclusively of states as members and the United States participates in INTERPOL pursuant to statutory authority.

Statutory protection is limited to international organizations that can demonstrate a particularized need for such protection. INTERPOL’S contacts with the United States are sufficient to demonstrate a need for protection, notwithstanding its lack of an office and permanent staff in the United States. Because INTERPOL does not have an office or staff in the United States, however, several of the specific privileges, exemptions and immunities available under the IOIA may be inapplicable. In an executive order designating INTERPOL as a public international organization, the President could limit the privileges, exemptions, and immunities accorded to INTERPOL to those necessary to carry out its essential functions in the United States.

Waiver of the Application of Conflict of Interest Laws for Members of the President’s Commission on Strategic Forces

Members of the President’s commission on Strategic Forces are special government employees for purposes of the conflict of interest laws, based on a Department of Defense determination. Under 18 U.S.C. § 208(a), such employees may not participate without a waiver in any particular matter in which they or their employers have a financial interest.

Waivers of the application of § 208(a) for members of the Commission may be granted by the Counsel to the President. This authority is based in part on 3 C.F.R. § 100.735-32, by which the President delegated to the Counsel his authority to grant waivers under 18 U.S.C. § 208(b)(1) for “Presidential appointees to committees, boards, commissions, or similar groups established by the President.”

The statutory standard for the grant of waivers clearly anticipates the exercise of discretion by the appointing official. Factors suggested by § 208(b)(1) include the nature and magnitude of the employee’s financial interest, the nature of the anticipated services to the government, and the likelihood that integrity of those services may be compromised. Other non-statutory factors might be considered with caution, such as the ability to reduce conflict by public disclosure of the employee’s interest, the government’s need for the employee’s services, and the agency’s general policy or practice in granting waivers.

Authorization for Publication and Advice on Copyright Protection for a Manuscript Prepared by a Department of Justice Employee

The key inquiry in determining the application of 28 C.F.R. § 45.73512, which governs publication of a manuscript by a Department of Justice employee, is whether the manuscript was prepared as a part or the employee’s official duties, is devoted substantially to the responsibilities and operations of the Department, or is otherwise dependent on information obtained as a result of government employment.

The manuscript at issue, which was prepared by an employee of the Bureau of Prisons, is sufficiently related to the employee’s official duties as to prohibit remuneration for publication under 28 C.F.R. § 45.735-12(a). The Deputy Attorney General may authorize publication without remuneration under 28 C.F.R. § 45.735-12(c) if it is determined that publication is in the public interest.

Although a decision on whether the manuscript in question may be copyrighted can only be made by the Register of Copyrights, it appears doubtful that the Register would grant copyright protection. The manuscript would probably be viewed as a “work of the United States Government,” because the work was prepared by a government employee as part of his official duties. Such works may not be copyrighted under the Copyright Act, 17 U.S.C. § 105.

History of Refusals by Executive Branch Officials toProvide Information Demanded by Congress (PART II—Invocations of Executive Privilege by Executive Officials)

The following two memoranda, prepared by the Office of Legal Counsel at the request of the Attorney General, describe instances since the founding of the Republic in which officials in the Executive Branch have refused to disclose information or produce documents requested by Congress. The first memorandum, dated December 14, 1982, sets forth examples of situations in which a President has personally directed that information be withheld, relying on the doctrine of executive privilege. The second memorandum, dated January 27, 1983, documents incidents where the Attorney General or some other executive official refused to provide information or documents to Congress in situations involving law enforcement, security, or personnel investigations. . . .

Applicability of the Antideficiency Act ApportionmentRequirements to the Nonadministrative Funds of the Federal Savings and Loan Insurance Corporation

The plain language and legislative history of the apportionment requirements in the Antideficiency Act, 31 U.S.C. §§ 1511–1519, make clear that Congress intended all funds, including nonadministrative funds, of government corporations such as the FSLIC to be subject to apportionment.

The provision in 12 U.S.C. § 1725(c)(5) that the FSLIC shall determine its necessary expenditures “without regard to the provisions o f any other law governing the expenditures of public funds,” does not specifically exempt FSLIC funds from the apportionment requirements of the Antideficiency Act.

Application of 31 U.S.C. § 3302(b) to Settlement of Suit Brought by the United States

The requirement in 31 U.S.C. § 3302(b) that money received for the Government be deposited in the United States Treasury does not apply in a case in which the United States asserted no claim for money damages or penalties, and will receive no money from a health care program managed for private plaintiffs.

Agency Rules as Constraints on the Exercise of an Agency’s Statutory Discretion

When an agency exercises discretion vested in it by statute by issuing a rule, the rule assumes the force and effect of law, and must be followed by the agency until it is amended or revoked. This principle applies notwithstanding an amendment to the authorizing statute affording greater discretion to the agency than is reflected in the existing rule.

When a statute grants discretion to an agency, the agency is usually free to exercise that discretion on a case-by-case basis, rather than through the adoption of general rules, unless either the statute itself or the requirements of due process make the adoption of general rules mandatory.

 

Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality

An Assistant United States Attorney (AUSA), a federal employee in the “excepted” service, may not be terminated solely on the basis of his homosexuality, in the absence of a reasonable showing that his homosexuality has adversely affected his job performance.

The burden would be on the Department of Justice to demonstrate a nexus between the AUSA’s homosexuality and an adverse effect on his job performance. In this case, it is doubtful whether the Department could meet its burden, because the AUSA has consistently received superior ratings and has been granted a security clearance. Although it may be argued that a prosecutor who violates a state criminal law prohibiting homosexual acts demonstrates a disrespect for the law inconsistent with the Department’s standard of prosecutorial conduct, the Department would have difficulty establishing the required nexus as a matter of law, because the state law is only enforced against public conduct.

Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits Against State and Local Governmental Entities

In general, the Attorney General has plenary authority over the supervision and conduct of litigation to which the United States is a party. Courts have narrowly construed statutory grants of litigation authority to agencies to permit the exercise of such power only when the authorizing statutes are sufficiently clear and specific to ensure that Congress intended an exception to the general rule.

The litigation authority of the Equal Employment Opportunity Corporation (EEOC) is limited by statute to suits brought on behalf of private sector employees. 42 U.S.C. §§ 2000e-4 to 2000e-6. Furthermore, litigation authority for Title VII “pattern or practice” suits against State and local government entities is specifically vested in the Attorney General.

To permit the EEOC, an executive agency subject to the authority of the President, to represent on its own behalf a position in court independent of or contrary to the position of the United States, would be inconsistent with the constitutional principle of the unitary executive.

Special Deputations of Private Citizens Providing Security to a Former Cabinet Member

The United States Marshals Service may not grant special deputy status to private citizens hired by a former cabinet member. By regulation, the Director of the Service may confer such status only upon selected federal officers or employees or state and local law enforcement officers.

Although the Attorney General may deputize private citizens, such appointments must further federal law enforcement functions within the authority of the Marshals Service. 28 U.S.C. § 569(c).

A federal law enforcement function sufficient to justify the appointment of special deputy marshals should be determined by the Marshals Service in the first instance, on the facts of each case in light of a number of different factors. In this case, no sufficient federal law enforcement function exists to permit the Attorney General to deputize these private security personnel.

Pages

Subscribe to Opinions

Was this page helpful?

Was this page helpful?
Yes No